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ALL AAATERIAL NONCIRCULATING 



CALL NUMBER 



VOLUME 



187 



COPY 



COPY 3 



AUTHOR 



TITLE 



SOUTHWESTERN REPORTER 



NAME AND ADDRESS 



COPY 3 



igitizeq 



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Google 



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Google 



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Google 



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This is a Key-Numbered Volume 

Each syllabus paragraph in this volume is marked 
with the topic and Key-Number section <&=» under 
which the point will eventually appear in the Amer- 
ican Digest System. 

The lawyer is thus led from that syllabus to the exact 
place in the Digests where we, as digest makers, have 
placed the other cases on the same point — This is the 
Key-Number Annotation. 



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NATIONAL REPORTER SYSTEM — STATE SERIES 

THE 

SOUTHWESTERN REPORTER 

VOLUME 187 

PERMANENT EDITION 

COMPRISING ALL THE) CUBRBNT DECISIONS OP THE 

SUPREME AND APPELLATE COURTS OF ARKANSAS 

KENTUCKY, MISSOURI, TENNESSEE 

AND TEXAS 

WITH KEY-NUMBER ANNOTATIONS 



JULY 26 — AUGUST 30, 1916 



ST. PAUL 

WEST PUBLISHING CO. 
1916 



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Google 



COPTXIOHT, 1916 
BT 

WEST PUBLISHING COMPANY 
(187 S.W.) 



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Google 



SOUTHWESTERN REPORTER. VOLPMK 18T 



JUDGES 



OF THE COURTS REPORTED DURING THE PERIOD COVERED 

BY THIS VOLUME 



AKKANSA8— Supreme Court. 

EDGAK A. Mcculloch, chief justic*. 

ASSOCIATB JUSTICES, 
CARROLL D. WOOD. 
JESSE C. HART. 
WILLIAM P. KIRBT. 
FRANK G. SMITH. 

KENTDCKT— Court of Appeals. 
SHACKELFORB MILLER, CKIBF JUSTICB. 

AS80C1ATB JUSTICES. 

JOHN D. CARROLL. 
Vr. E. SETTLE. 
C. C. TURNER. 
ERNEST S. CLARKE. 
OUS THOMAS. 
ROLLIN HURT. . 

COMUISSIONBB or APPBAI.8. 

WILLIAM ROGERS CLAT. 

MIS80TTRI— Supreme Court, 

MlCHELAUa M. WOODSON, Chib*' JnsTici. 

Division No. 1. 

W. W. GRAVES, Presidino Judos, 

ASSOCIATE JUDQES. 
ARCHELAUS M. WOODSON. 
HENRT W. BOND, 
JAMBS T. BLAIR. 

Division No. t. 
CHAS. B. FARIS, Prbsidino Junoa 
associate judges, 
ROBERT F. WALKER. 
CHARLES Q. REVELLK . 
SXIPRSMB COCBT COMMISSIODBBS. 
ROBI21T T. RAILEY. 
STEPHEN S. BROWN. 
REUBEN F. ROY. 
FRED L. WILLIAMS. 

The St. Louie Court of Appeals. 
GEORGE! D. RETNOLDS, Presidino JUDoa. 
ASSOCIATS JCDOES. 
ALBERT D. NORTONL 
WILLIAM H. ALLEN. 

The Kansas City Court of Appeals. 

JAMES ELLISON, PEESiDlMa JWDOa. 

ASSOCIATE JUDOaS. 

J. M. JOHNSON. 

FRANCIS H. TRIMBLE. 

The Springfield Court of Appeals. 
■yr. K. ROBERTSON, Presidino Juooa. 
ASSOCIATE JUOQBS, 
JOHN S. FARRINGTON. 
JOHN T. STURGIS. 



TENNESSEE— Supreme Court. 

M. M. NEIL, CHIEF JUSTICE. 

A880CIATB JUSTICES. 
A. S. BUCHANAN. 
D. L. LANSDEN.' 
SAMUEL C. WILLIAMS. 
GRAFTON GREEN. 
A. R. GHOLSON.« 

TEXAS— Supreme Court. 
NELSON PHILLIPS, Chief Justice. 

ASSOCIATE justices. 

WILLIAM E. HAWKINS. 
J. E. YANTIS. 

Court of Criminal Appeals. 
A. C. PRENDBRGAST, PRESIDINO JODOE. 

JUDOBS. 

W. L. DAVIDSON. 
A. J. HARPER. 

Courts of Civil Appeals. 

First District. 
R. A. PLEASANTS, CHIEF JUSTICE. 

ASSOCIATE JUSTICES. 

S. A. McMEANS. C. E. LANE. 

Second District. 

T. H. CONNER, CHIEF JUSTICB, 

A880CIATB JUSTICES. 

IRBT DUNKLIN. R. H. BUCK. 

Third District. 

W. M. KEY, Chief Justice. 

ASSOCIATE JUSTICES. 

B. H. RICB. C. H. JENKINS. 

Fourth District. 

W. S. FLY, CHIEF Justice. 

ASSOCIATE JUSTICES. 

A. N. MOURSUND. P. H. SWEARINGBN. 
Fifth DUtrict. 
ANSON RAINBY, Chibf Justice. 

ASSOCIATE JUSTICES. 
J. M. TALBOT. CHAS. A. RASBURY. 

Sixth District. 
SAMUEL P. WILLSON, Chibp JUSTICE. 

ASSOCIATE JUSTICES. 

RICHARD B. LEVY. WM. HODGES. 

Seventh District. 

B. P. HUFF, Chief Jubtiob. 

ASSOCIATE JUSTICES. 

H. Q. HENDRICKS. R. W. HALL. 

Eighth District. 
J. B. HARPER, Chief Justice. 

ASSOCIATE JUSTICES. 
E. F. HIGGINS. A. M. WALTHALL. 

Ninth DistHct. 
3. M. CONLBY, CHIEF Justice. 

ASSOCIATE JUSTICES. 
A. O. BROOKE. V. E. MIDDLEBROOK. 



> Absent on aeooost of lUneas. 



(V)* 



< Commissioned April 
the disability 



1, Ult, to serrs during >^ 
ot D. L, Lanaden. 



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341771 



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AMENDMENTS TO RULES 



COURT OF APPEALS OF KENTUCKY » 



Amended March 7, 1916 



Xin.— a) Pentions for rehearing^When 
tnay he filed in clerk's offloe.— When time Is 
extended to file a petition for rehearing, and 
the time expires during vacation, or where 
the court adjonms before the time for filing 
a petition for rehearing has expired, the 
filing of the petition with the clerk in the 
clerk's office within the time shall be held 
sufficient. The clerk, however, has no right 
to extend the time for filing, and this can 
only be done by an order from one of the 
judges. 

(2) Petitioiu for rehearing— How disposed 
of-~Ten copies. — Petitions for rehearing shall 
be considered by a Judge other than the one 
who delivered the opinion in the case. The 
petition must be printed, and ten copies must 
tie filed. 



(3) Petitions for rehearing — Extension of 
time. — No extension of time for filing a peti- 
tion for rehearing will be granted except up- 
on the atadHvit or statement of the attorney 
or client stating sufficient cause therefor. 

(4) Petitions for rehearing — Notice to ad' 
verse party— Response. — A party filing a peti- 
tion for rehearing must, before filing the 
same, furnish to counsel for the adverse 
party a copy of the petition, and file with 
the petition a notice showing that he has de- 
livered to counsel the copy reqnired, and the 
adverse party shall have 10 days after the 
service of the notice to file a response if he 
desires to file one. 



* For other rules, see 154 9. W. Ttl. 



3. W. vll. 



187 S.W. 



(vu)« 



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CASES REPORTED 



Page 
AbernathyRigby Co. ▼. McDougle, Cam- 
eron & Webster Co. (lex. Cir. AppJ. . . . 503 
Acme Harvestiiie Mach. Co., Weber Imple- 
ment Co. T. (Mo.) 874 

JEtM Club T. Jackson (Tex. CiT. App.). .. . 971 

iEtna Ids. Co. v. Short (Ark.) 857 

^»na Life Ins. Co., Fay v. (Mo.) 861 

■UtaB Life Ins. Co. of Hartford, Co^in., 

McDonald t. (Tex. Civ. Aj?p.) 1(K)6 

A. Harris & Co. t. Campbell (Tex. Civ. 

App.) 388 

A Harris & Co. 7. Grinnell Willis & Co, 

(Tex. Civ. App.) 763 

Albany Nat. Bank of Albany, Self t. (Tex. 

(St. App.) 982 

Albers v. Moffltt (Mo. App.) 903 

AJexander y. Conley (Tex. Civ. App.) 264 

Alexander, Western Union Tel. (3«. t. (Tex. 

CiT. App.) 1016 

Allaire Woodward & Co. t. Cole (Mo. 

AppO 816 

Albiutt, Rankin y. (Ark.) 934 

Altgelt V. Gutzrit (Tex. Civ. App.) 220 

Altman, Tazoo & M. V. R. Co. v. (Ark.). . 650 
American Bonding Ca, Commercial Bank 

T. (Mo. App.) 99 

American Kxp. Co. v. Fox (Tenn.). ....... .1117 

American Fire Ins. Co., Terminal Ice & 

Power Co. v. (Mo. Ap^ 564 

American Nat Assur. Co., Lyke v. (Mo. 

App.) 265 

American Nat. Ins. (3«. v. Nvckols (Tex. 

CiT. App.) 497 

Amick V. Kansas City OIo. App.). 682 

Anderson, Galveston, B. & H. B. Co. v. 

(Tex. Civ. App.) 491 

Anderson County v. Hopkins (Tex. CSv. 

App.) 1019 

Aid V. Bowie (Ark.) 1066 

Arden v. Boone (Tex. Civ. App.) 995 

Arensman v. State (Tex. Cr. App.) 471 

Arkansas, Lw & G. R. Co. v. Morse (Ark.) . . 169 
Arkansas Trust & Banking Co., Little t. 

(Ark.) 629 

Arkansas Valley Trust Co. v. Corbin (Mo. 

App.) 1199 

AAley, D. & N. B. Co. v. Baggott & Boyd 

Utk.) 649 

Asbworth, Keels v. (Tex. Civ. App.) 1008 

Atchison, T. & S. F. R. Co., Carlson v. 

(Mo.) 842 

Atchison, T. & S. F. B. Co., Cudahy Pack- 

bg C©. T. (Bfo. App.) 149 

Anstm V. Bonis (Mo. App.) 669 

Aydelott, Peeples v. (ArkJ 671 

Baggott ft Boyd, Ashley, 1>. & N. R. Co. v. 

„(Ark.) 649 

Baird, Camden Fire Ins. Ass'n v. (Tex. 

Civ. App.) 699 

Baird, New Jersey Fire Ins. Co. v. (Tex. 

(Jv. AppJ ,. 356 

Baker v. State (Tex. Or. App.) 949 

Bakewell y. Batley (Mo. AppJ 788 

Ball y. Miller (Tex. CHv. App.) 688 

Bank of Grand Prairie, Breit«ke v. (Ark.) 660 

Barber y. Hartford Life Ins. Co. (Mo.) 867 

Barber y. Hartford Life Ins. Co. (Mo.). . 874 

Barger y. Bmbaker (Tex. Cly. App.) 1025 

Barr, State y. (Mo. App.) 675 

Barrentine, Dallas Fair Park Aiftusement 

Ass'b y. Q-ex. Civ. App.) 710 

Barrett v. Foote (Mo^ 67 

Barton v. Wichita River Oil (3o. (Tex. 

Civ. App.) 1048 

Basbam y. State (Tex. Cr. App.). .•. II99 

Batley, Bakewell y. (Mo. App.) 788 



187 S.W. 



(i«). 



Page 
Baumbusb, Kalmans v. (Tex. CSv. App.). . . 697 
Beaton, Reliance Life Ins. Co. v. (Tex. Civ. 

App.) 743 

Beene y. Wapies (Tex.) 191 

Bender v. Bender (Tex. Ciy. App.) 735 

Bennett, Kraemer y. (Mo.) 846 

Benson, Hartford Life Ins. C>>. v. (Tex. 

Civ. App.) , 361 

Berry, Wichita Falls Traction Co. y. (Tex. 

Civ. App.) 415 

Bigbam v. Stamps (Tex. Civ. App.) 733 

Binder, Wagner v. (Mo.) ,....1128 

Birchfield v. Bourland (Tex. Civ. App.). . . . 422 

Bixeman v. Reichel (Mo. App.) 269 

Black V. State (Tex. Cr. App.) 332 

Black V. Wilson (Tex. Civ. App.) 493 

Blair ft Hughes Co., Martin v. (Tex. Civ. 

App.) 505 

Blakemore v. Edraondson (ArkJ : 912 

Blankenbaker v. St. Louis ft S. F. R. Co. 

(Mo.) i 840 

Block, Bush V. (Mo. App.) 153 

Bloss y. State (Tex. Cr. App.) 487 

Blount, Price & Co. v. Payne (Tex. Civ. 

, App.) 990 

Board of Comrs of Creek County, OkL, v. 

Speer ft Dow (Ark.) v 316 

Board of Knualization of Cleveland Coun- 
ty, Drew County Timber Co. y. (Ark.) . . . 942 
Board of Improvement of Improvement 

Pist. Na 10 of Texarkana, Cabell v. 

(Ark.) ...666 

Board of Improvement of Improvement 

Dist. No. 10 of Texarkana, Roberts v. 

(ArkO 666 

Boll, Great Eastern Casualty Co. y. (Tex. 

av. App.) 686 

Boone, Arden y. (Tex. Civ. App.) 995 

Boswell, Griffin v. (Ark.) 166 

Bounds v. Stephenson (Tex. Civ. App.) 1031 

Bourland, Birchfield v. (Tex. CBv. App.). . 422 

Bowden, Webb v. (Ark.) 461 

Bowie, Ard v. (Ark.) 1066 

Bowker v. Bry-Block Mercantile Co. 

(Tenn.) 304 

Bowles y. Quincy, O. & K. C. R. Go. (Mo. 

App.) 131 

Boyer y. St Joseph (Mo.) 1185 

Boyken y. Sharp (Mo, App.) 90 

Bradshaw, Swanaon v. (Ms. App.) 268 

Brady v. Cope (Tex. Civ. App.) 678 

Brady v. Blchey ft Casey (Tex. Civ. App.) 608 

Brandon v. Parker (Atk.) 812 

Brazoria County Road Dist. No. 13, 

League v. (Tex. Olv. App.) 1012 

Brazos Valley Telegraph & Telephone Co. 

v. WUson (Tex. Civ. App.) 284 

Breining v. Lippincott (Ark.) 916 

Breitzke v. Bank of Grand Prairie (Ai-k.) 66& 
Brenard Mfg. Co. y. Freeman ft Wescott 

(Mo. App.) 104 

Brewer, Sells v. (Ark.) 907 

Bross V. Rogers (Mo.) 88 

Brown, McLean County Bank y. '(Mo. 

App.) 785 

Brown y. Morrow (Ark.) 449 

Brown y. Uhr (Tex. Cly. App.) 881 

Browne Grain Co., First Nat Bank y. 

(Tex. Civ. App.) 489 

Brubaker, Barger v. (Tex. C^v. App.) . . .1025 
Brubaker, Thatcher Implement & Mercan- 
tile Co. V. (Mo. App.) 117 

Bruner Granitoid Co. y. Glencoe lime ft 

Cement Co. (Mo. App.) 807. 

Bmnswlek y. Standard Accident Ins. Co. of 

Detroit, Mich. (Mo. App.) 802 

Bruyere, Shear v. (Tex. Ciy. App.)...,,.. 

LjiUiLi^ 



802 /^^ T 



187 SOUTHWESTERN BBPOBTBR 



Pag« 

Bryant, Hodges r. (Mo. App.) 623 

Bryant Lumber Co. t. Fourcke Biver 

Lumber Co. (Ark.) 455 

Bry-BIock Mercantile Co., Bowker ▼. 

(Tenn.) 304 

Buckley T. Monck (Mo.) 81 

Buena Vista Veneer Co., Morgan Co. v. 

(Ark.) 640 

Bullard t. Lanius Pressed Brick Co. (Tex. 

CiT. App.>.; 1199 

Bunn, Schneider v. (Ark.) 625 

Burke Music Go. v. Miller (Mo. App.) .... 141 
Burns Detective Agency, Pickard v. (Mo. 

App.) 614 

Burns v. Polar Wave Ice & Fuel Oo. (Mo. 

App.) 146 

Bush T. Block (Mo. App.) 163 

Bustos, . Carter-Mullaly Transfer Co. v. 

(Tex. C!iv. App.) 396 

Butler County R. Co. r. Exum (Ark.)..i. . 329 
Buttertield v. Butterfield (Mo. App.) 206 

Cabell V. Board of Improvement of Im- 
provement Dist. No. 10 of Tezarkana 

(Ark.) 666 

Cain V. Garvey (Tex. CSv. App.) 1111 

Caldwell County. Clopton v. (Tex. CSv. 

App.) ...., 400 

Camden Fire Ias. Aas'n v. Baird (Tex. Civ. 

App.) 699 

Campbell, A. Harris & Co. v. (Tex. Civ. 

App.) 365 

Camion t. Harmon (Ark.) 164 

Cardwell, Missouri, K. & T. R. Co. of Tex- 
as V. (T«x. Civ. App.) .1073 

Carlson v. Atchison, T. & S. F. R. Co. 

(Mo.) 842 

Carmack, St. Louis Southwestern R. Co. v. 

(Ark.) 635 

Carradine v. Ford (Mo. App.) 285 

Carroll, Strasner v. (Ark.) 1057 

Carter, Leslie v. (Mo.) 1196 

(3arter-Mullaly Transfer Co. ▼. Bustos 

(Tex. Civ. App.) ; 896 

Cavell, Memphis St R. Co. v. (Tenn.) 170 

C. C. Clemons Produce Co., Roaring Fork 

Potato Growers v. (Mo. App.) 617 

Channell Cliemical Co. v. Hall (Tex. Civ. 

App.) 704 

Chicago, R. I. & G. R. C!o. v. Pavillard 

(Tex. Civ. App.) 998 

Chicago, R. I. & P. R. Co. v. Jones (Ark.). . 436 
Chicago, B. L & P. R. Co. v. Lydik (Mo.) 801 
Chicago, R. I, & P. B. Co. v. Redding 

(Ark.) 651 

CliicagD, R. I. & P. R. Co., Summers v. 

(Mo. App.) 125 

Chicago Set & Seed Co., Texas Seed & 

Floral Co. v. (Tex. dv. App.) 747 

Chicago & A. R. Co., McWhirt v. (Mo.). . . 830 
Chunn v. London & Lancashire Fire Ins. 

Co. (Ark.) 807 

Citizens' Bank, Merchants' & Farmers' 

Bank v. (Ark.) 650 

Citizens' Bank of Senath v. Douglass (Mo. 

App.) 158 

Citizens' Bank & Trust Co. v. Raines 

(ArkJ 932 

City of Hot Springs, Laprairie v. (Ark.).. 442 

City of Morrilton, Scoggin v. (Ark.) 445 

City of St. Joseph, Boyer v. (Slo.) 1185 

City of San Antonio, Coultrcss v. (Tex.) . . 104 
City of Sedalia, Jackson v. (ilo. App.) . . . 127 
Cito of Terrell v. Terrell Electric Light 

Co. (Tex. Civ. App.) 966 

Clark V. Hallam (Tex. C!iv. App.) 964 

Clark, State v. (Tex. Cr. App.) 760 

Clarke, House v. (Mo.) 67 

Clarkson & Co. v. Gans S. S. Line (lez. 

Civ. App.) 1106 

Cleburne Oil Mill Co., Farmers' & Ginneis' 

Cotton Oil Co. V. (Tex. Civ. App.) 350 

Clemens Produce Co., Roaring Fork Potato 

Growers v. (Mo. App.) 617. 

Clibourn, Dickinson v. (Ark.) 909 



CUnton T. Modern Woodmen of America 
/^f ][ I ^^ g3j| 

Clopton V * ' GaJd wdi ' County CTei! CiVl 

App.) 400 

Clow V. Watson (Ark.) 175 

Coffin V. Planters' Cotton Co. ^k.) 309 

Cole, Allaire, Woodward & Co. v. (Mo. 

App.) 816 

Coleman t, Stote (Tex. Cr. App.) 481 

Coleman v. State Ctex. Cr. App.) 1199 

Collins, Texas Bldg. Ck). v. CRi. Civ. App.) 401 
Commercial Bank t, American Bonding 

Co. (Mo. App.) 99 

Commercial Bank r. Maryland Casualty Co. 

(Mo. App.) lOS 

Commercial Fire Ins. Co., Terminal Ice & 

Power Oo. v. (Mo. App.jf 569 

Commissioners' C^urt of "iMnhy County v. 

Miles (Tex. Civ. App.) 378 

Commonwealth Bonding A Casualty Ins. 

Co. v. Hendricks (Tex. Civ. App.) 698 

Commonwealtii Bonding & Casualty Ins. 

Co. -v. Meeks (Tex. Civ. App.) 681 

Oonley, Alexander v. (Tex. CJiv. App.) 254 

Connally v. Missouri, K. & T. R. Oo. of 

Texas (Tex. Civ. App.) 876 

Conner, Trinity County Lumber Co. v. 

(Tex. Civ. App.)... 1022 

Cook, State ex rel. Wagener v. (Mo. App.) 621 
Cook, State e:? rel. Wagener v. (Mo. App.) 1122 

Cope, Brady v. (Tex. Civ. AppO 678 

Corbin, Arkansas Valley Trust C!o. r. (Mo. 

App.) lion I 

Cordell, Summers v. (Mo.) 5 

Ckirless ▼. Eatberton (Mo.) 89 ) 

Comet V. Meckel Realty & Investment Co. I 

(Mo. App.) 622 1 

Gotten V. Hughes (Ark.) 005 

Couch, Kansas CHty, O. O. & St. J. B. Go. 

V. (Mo.) W 

Coultress v. San Antonio (Tex.) 194 

Crabtree, Missouri State life Ins. Oo. v. 

(Ark.) 173 

Craft, Lusk v. (Ark.) 176 

Craig -V. McNichols Furniture C!o. (Mo. 

App.) 793 

Crandall, Priebe v. (Mo. App.) 605 

Oraton v. Huntslnger (Mo.) 48 

Crawford, Meenacfa v. (Mo.) 879 

Crawford v. Spruill (Tex. CSv. App.).... 361 

Crites, Phelps v. (Mo.) 3 

Cross V. Wilkinson (Tex. dv. App.) 345 

Crossley v. Summit Lumber Co. (Mo. AppO 113 
Cudahy Packing Co. v. Atchison, T. & S. 

F. R. Co. (Mo. AppJ 149 

Cuilla V. State (Tex. Or. AppJ 210 

C. & S. Mining Co., Shlmmin v. (Mo. App.) 76 

Dallas Fair Park Amusement Ass'n t. Bar- 

rentine (Tex. Civ. App.) 710 

Darragh v. Goodman (Arli.) 673 

Davenport v. RutledKC (Tex. Civ. App.) . . 988 

Davidson v. Gould (Mo. App.) 591 

Davies v. Johnson (Ark.) 323 

Davis, Jameson v. (Ark.) 314 

Davis, Southern Woodmen v. (Ark.) 63s 

Davis, W. D. Reeves Lumber C3o. v. (Ark.) 171 

Dean, Dlehr v. (Mo. App.) 602 

Dcbth V. State CTex. Cr. App.) 341 

De Leon v. State (Tex. Cr. App.) 485 

De Mun Estate Corp. v. Frankfort General 

Ins. Cto. (Mo. App.) 1124 

Denny, Southwestern Oil & Gas (3o. v. 

(Tex. Civ. App.) 973 

Derrick v. State (Tex. Cr. App.) 759 

Derry v. Harty (Tex. Civ. App.) 343 

Des Moines & Mississippi Levee Dist. No. 

1, Voss V. (Mo. App.) 820 

Deubler v. United Rys. Co. of St. Louis 

(Mo. App.) 813 

De Wolff V. Morino (Mo. App.) 620 

Dickey, Gulf, T. & W. R. Co. v. (Tex.). . 184 
Dickey, Gulf, T. & W. B. Co. t. (Tex.). . 188 

Dickinson v. Clibourn (Axk.) 90S 

Diehr v. Dean (Mo. Agg.)....,.^^.,^^...^. . 602 



OASBS BBPOBTIDD 



Page 

DiUard, OnU Ooast Tiuwp..Oow t. (Tex. 

CiT. App.) , 976 

Dixie Mining & DeTelovnent Ca, Johnson 

T. filo.) 1 

Oonoho V. Missonri Pac. B, Co. (Mo. App.) 141 

Uonovan y. Gibbs.jMo.) 46 

Douglass, Citizens' Bank of Senatb v. (Mo. 

App.) » 168 

Drew County Timber C3o. t. Board of 

Equalization of Cleveland County (Ark.) 942 

Drew's Estate, In re (Mo. App.) 788 

Driver, Texas Cent. B. Co, t. (Tex. Cir. 

App.) 981 

Duncan t. State (Ark.) 906 

Dunham, Modrell ▼. (Mo. App.) 361 

Dunham, Modrell ▼, (Mo. App.) 664 

Dunham, Schoenhard ▼. (Mo. App.) 273 

Darrett, Kanaiaa City, M. & O. B. Co. of 

Texan T, (Tex. ClT. App.) 427 

Eatherton, Corless r. (Ho.) 39 

Kdmondson, Blakemore v. (Ark.) 912 

Elldiis T. Henry Vogt Mach. C!o. (Ark.).... 663 

Elks Inv. Ca y. Jones (Mo.) 71 

Elliott, Hampton SUve Co. v. (Ark.) 647 

Ellison, State ex rel. Detroit Fire & Ma- 
rine Ins. Co. y. (MioJ 23 

Eminent Honaehold of Columbian Woodmen 

V. Howie (Ark.) 176 

Ennis, Aastin y. (Mo. App.) 690 

Equitable Surety Co. v. WUson (Ark.)... . 940 
Esoajeda, Wigwam Bowling & Athletic' 

Club v. (Tex. Ciy. App.) 972 

Erans y. Williams, two cases (Ark.) 446 

Exum, Bntler Coimty B Co. y. (Ark.)... 329 

Fabianoif, Vasailopulos T. (Mo. App.).... 106 

FalJoon, MUler y. (Mo.) 839 

Fanners' & Oinnera' Cotton Oil Co. y. Ole- 

bunie Oil Mill Co. (Tex. Ciy. App.) 350 

Fannington' Equitable Building & Loan 

Ass'n y. Miners' Lumber Co. (Mo. App.) 555 

Fay y. JEtnti Life Ins. Co. (Mo.) 861 

Feats y. Watson (Ark.) 178 

Federal- Lead Co., Simpson y. (Mo. App.). .1123 
Federal Trust Co., Fitxgerrell yl (Mo. 

App.) 600 

Ferguson y. State (Tex. Cr. App.) 476 

Fireman's Ins. Co. y. Jesse French Piano 

& Orean Co. (Tex. Civ. App.) 601 

First Nat. Bank y. Browne Grain Co. CTei. 

Civ. App.) 489 

First Nat Bank, Smith v. (Tex. Civ. App.) 283 
First Nat. Bank, State Nat. Bank v. (Ark.) 67,? 

First Nat Bank, Tancred v. (Ark.) 160 

First State Bank & Trast Co. of Abilene y. 

Walker (Tex. C&v. App.) 724 

Fitzgerrell y. Federal Tmst Co. (Mo. App.) 600 

Pitzpatrick y. Owens (Ark.) 460 

Foote, Barrett y. (MoJ 67 

Ford, Carradine y. (Mo. App.) 285 

Fortner y. Phillips (Ark.) 818 

Foster v. Sayman (Mo.) 1198 

Fonrche Biver Lumber Oo., Bryant Lum- 
ber Co. y. (Arit.) 465 

Fox, American Exp. Co. y. (Tenn.) 1117 

Frankfort General Ins. Co., De Mun Es- 

Ute Corp. y. (Mo, App.) 1124 

Franks. Pullman Co. y. (Tex. Civ. App.) 601 
Fr<>enian & Wescott, Brenard Mfg. Go. y. 

(Mo. App.) 104 

French Piano & Organ Co., Fireman's Ins. 

Ca y. (Tex. Ciy. I^p.) 691 

Friend y-Thomas (Tex. (3iy. App.) 986 

Frierson, Yarker y. (Ark.) 162 

I'ndge, Huffman y. (Ark.) , 644 

Galveston Electric Co. y. Hanson (Tex. Ciy. 

App.) 683 

Galveston, H. & H. B. Co. v, Anderson 

„(Tex. dy. App.) 491 

Cans S. 8; lAae, W. B. Clarkson & Co. v. 

(Tex. Cir. App.) 1106 

Garcia, Es parte (Te». Civ. App.) 410 

Garcia, Gacell r. (Tet. Civ. App.) 410 



Fag* 

Qazrela, Bitachy t. (Mo. A^f.) ^.1120 

Garvey,. Cain y. (Tex. Civ. App.) 1111 

Gaoghsn, State y. (Ark.) 918 

Qaeell v. Garcia (Tex. CIt. App.) 410 

Gensberg y. Neely (Tex. Civ. App.) 247 

German. JlvangeUcal Protestant Congrega- 
tion of Church of the Holy Ghost y. 

Schreiber (Mo.) ; 845 

Qibbs, Donovan v. (Mo.) 46 

Gidley, Toberman, Mackay & Oo. y. (Mo. 

App.) 698 

Gilbert y. Hilliard (Mo. App.). 694 

Gilcrease, Missouri, K. & T. B. Co. y. (Tex. 

Civ. iip.) 714 

Glencoe Lime & Cement Co., P. M. Broner 

Granitoid Go. v. (Mo. App.) 807 

Glens Falls Ins. Oo. y. Walker (Tex. Ciy. 

App.) 1036 

Glover v. Glover (Mo. App.) 278 

Goodman, Darragb y. (Ark.) 673 

Goodman, Martin y. (Tex. Civ. App.) 689 

Gordon v. State (Ark.) 918 

" "~ ■■ •. (Mo. App.).. 591 



Gould, Davidson y. 



Grantham, Myers y. (Tex. Cir. App.) 632 

Grayling Lumber Co. v. Hemingway (Ark.) 327 
Great Eastern Casualty Go. v. Boll (Tex. 

av. App.) 686 

Great Western M^. Co., Winkleblaek y. 

(Mo. App.) 96 

Greenbrier Distillery Co., Louisville & N. 

R. Co. y. (Ky.) 296 

Greenville Bank, State ex rel. Hadley y. 

(Mo. App.) 697 

Griffin v. Boswell (Ark.) 166 

Griffis, Western Union Tel. Co. y. (Tex. 

Civ. App.) 848 

GrinneU waiis & Co., A. Harris & Co. y. 

(Tex. av. App.) 753 

Groce v. State TArk.) 936 

Guild y. State (Tex. Or. App.) 216 

Gulf Coast Transp. Co. v. Dillard (Tex. 

Civ. AppJ 978 

Gulf, O. 4 8. F. a, Co., NoviU y. (Tex. Civ. 

App.T. ; 888 

Gulf, T. A W. B Co. V. Dickey (Tex.)... 184 
Gulf, T. & W. B Co. V. Dickey (Tex.).... 188 

Gutzeit, Altgelt v. (Tex. Civ. App.) 220' 

Q. W. Jones Lumber Oo. y. Wisiurkana 

Lumber Co. (Ark.) 1068 

HagUn y. Haglin (Ark.).... 821 

„-_.._-... 228 

764 



Hagood y. Hagood (Tex. Civ. App.) 228 

ley V. State, two cases (Tex. CJr. 

Jl, Channel! Chemical Co. v 

Lpp.) . . 

Hallam, dark y. (Tex. Civ. App.) 



(Tex. Civ 



704 
964 



Hamlet y. Leicht (Tex. Civ. App.). ....'.. .1004 

Hampton Stave Co. v. Elliott (ArkJ 647 

Hanson, Galveston Electric Co. y. (Tex. Civ. 

App.) ;.... 833 

Hardin Lumber Co., King r. (Tex. Civ. 

App.) 401 

Harmon, Cannon v. (Ark.) 164 

Harrell Gin Co, Missouri, K. & T. E. Co. 

of Texas v. (Tex. Civ. App.) 376 

Harris County v. Smith (Tex. Ciy. App.) . . 701 
Harris & Co. v. Campbell (Tex. Civ. App.) 365 
Harris & Co. v. Grinnell Willis & Co. (Tex. 

Civ. App.) .: 783 

Harri9<Mi v. Jackson Coun^ (Mo.) 1183 

Harrison Land & Mining Co., SchoGeld v. 

(Mo.) 61 

Hartford Ufe Ins. Co., Barber v. (Mo.)... 867 
H^tford Life Ins. Co., Barber v. (Mo.). . . . 874 
Hartford Life Ins. Co. v. Benson (Tex. Olv. 

App.) 361 

Harty, Derry v. (Tex. Civ. App.) 843 

Haynes, Holland Banking Co. v. (Ark.). . . . 632 

Haynes, Puckett v. (Mo. App.) 91 

Heagy v. Miller (Mo.) 889 

Hemingway, Grayling Lumber Co. y. (.4rk.) 827 
Hendricks, Commonwealth Bondine & Cas- 
ualty Ins. Co. V. (Tex. Civ. App.) 698 

Hendricks, State v. (Mo. Ai>p.) -272 

Henry Vogt Mach. Co '^" • 

Hesse, State v. (Mo. 



.(Mo. App.) 272 /^^ T 

Co., Elkinav. (Ark.)... 663 , I -.OOOlP 
0. App.)..; 67ibyVjVJU^lV^ 



zu 



187 SOUTHWESTERN RBPOBTEB 



Pace 

Bigh V. Reed (Ark.) 168 

Hight T. Marshall (Ark.) 483 

Hildrith v. Walker (Mo. App.) 608 

HiU V. Staate (Tex.Civ.App.) 1089 

Hille, Sulzberger & Sons Co. of America 

V. (Tex. av. App.) 992 

HiUiard, GUbert v. JMo. App.) 594 

Hillside Securities Co., North Kansas City 

Xsvee Dist v. (Mo.) 852 

Hodges T. Bryant (Mo. App.) 623 

Hoette y. North American Union (Mo. 

App.) 790 

HoUand v. State (Tex. Cr. App.) 944 

HoUand Banking Co. v. Haynes (Ark.) B32 

Home Ins. Co., Terminal Ice & Power Co. 

v. (Mo. App.) 668 

Hood T. Boleson (Ark.) 1039 

Hope V. Shirley (Tei. Civ. App.) 973 

Hopkins, Anderson County v. (Tex. Civ. 

App.) 1019 

Horton v. Thompson (Ark.) tKi7 

House V. Clarke (Mo.) 67 

Houston Electric Co., Jacobe t. (Tex. Cir. 

App.) 247 

Houston Oil Co. of Texas v. Stepney (Tex. 

Civ. AppO 1078 

Houston Transp. Co. v. Texas Co. (Tex. 

Civ. App.) 430 

Howard, Special School Dist. No. 33, 

Greene County v. (Ark.) 444 

Howie, Eminent Household of Columbian 

Woodmen v. (Ark.) 176 

Huffman v. Fudge (Ark.) 644 

Hughes, Cotten v. (Ark.) 905 

Hughes V. Underwood Typewriter Co. (Tex. 

Civ. App.r. 899 

Hunter v. Hunter (Tex. Civ. App.) 1049 

Huntzinger, Craton y. (Mo.) 48 

Huth v. Huth (Tex. Civ. App.) 523 

Untspeth v. State (Tex. Cr. App.) 340 

Ingram, St. Louis, I. M. & S. B. Co. v. 

(Ark.) 462 

Isaacs, State ▼. (Mo.) 21 

Jackmann t. St Louis & H. R. Co. (Mo. 

App.) 786 

Jackson, JEtna Club v. (Tex. Civ. App.)... 971 

Jackson v. Sedalia (Mo. App.) 127 

Jackson, Tankersley v. (Tex. Civ. App.) . . . 985 

Jackson v. Walls (Tex. Civ. App.) '676 

Jackson County, Harrison v. (Mo.) 1183 

Jackson & Allen, San Antonio & A. P. B. 

Co. V. (Tex. Civ. App.) 488 

Jacobe v. Houston Electric Co. (Tex. Civ. 

App.) 247 

Jameson v. Davis (Ark.) 814 

Jeffress v. Western Union Tel. Co. (Tex. 

Civ. App.) 614 

Jenkins v. Morgan (Tex. Civ. AppO 1091 

Jesse French Piano & Organ Co., fireman's 

Ins. Co. V. (Tex. Civ. App.) 691 

Johnson, Davies v. (Ark.) 323 

Johnson v. Dixie Mining & Development 

Co. (MoJ 1 

Johnson y. Maier (Mo. App.) 143 

Johnson v. Missouri Pac. B. Co. (Mo. App.) 282 

Johnson, Bandleman v. (.4.rk.) 626 

Johnson, Hobertson y. (Ark.) 439 

Johnson v. State (Tex. Cr. App.) 336 

Jones, Chicago, B. L & P. B. Co. v. (Ark.) 436 

Jones, Elks Inv. Co. y. (Mo.) 71 

Jones, Texas & N. O. B. Co. v. (Tex. C3iv. 

App.) 717 

Jones Lumber Co. y. Wisarkana Lumber 

Co. (Ark.) 1068 

J. B. Watkins Medical Co. y. WiUiams 

(Ark.) 663 

Julian V. Kansas City Granite & Monument 

Co. (Mo. App.) 584 

J. W. York & Sons v. PoweU (Ark.) «28 

Kaker v. Parrish (Tex. Civ. App.) 517 

Kalmans v. Baumbush (Tex. Civ. App.) . . . 6}>7 
Kansas City, Amick v. (Mo. App.) 682 



Ptgi 

Kansas City, O. C. ft St J. B. Co. y. Couch 

(Mo.) w 

Kansas C!ity Granite afk Monument Co., 

„Julian V. (Mo. App.) 581 

Kansas City, M. & O. B. Co. of Texas v. 

Durrett (Tex. Civ. App.) 427 

Kapp, State y. (Mo.) 1178 

Keathley, St Louis & S. F. B CJo. y. (Ark.) 319 

Keels y. Ashworth (Tex. Civ. App.) 1008 

Keller y. Tzabal (Mo. AppJ 576 

Kmg y. Hardin Lumber (Jo, (Tex. Civ. 

App.) 401 

King y. Missouri Dairy Co. (Mo. App.) 2S4 

Kirkwood Leisure Hours' Social and Pas- 
time Club, State ex reL Lashly v. (Mo. 

App.) 819 

Knoche y. Pratt (Mo. App.) 678 

Koyl y. Lay (Mo. App.) 279 

Kraemer v. Bennett (Mo.) >H6 

Kuehn v. Meredith (Tex, Civ. App.) 3S6 

Lancaster, Uhr y. (Tex. Civ. App.) 379 

Landa & Storey, St Louis, I. M. & S. B. 

Co. V. (Tex. Civ. App.) 358 

Laning Harris Coal Co., Pittsburg * Mid- 
way Coal Co. v. (Mo. App.) 263 

Lanius Pressed Brick Co., Bullard v. (Tex. 

ay. App.) 1199 

Laprairie y. Hot Springs (Ark.) 442 

Laster, St Paul Fire & Marine Ins. Co. 

y. (Tex. Ciy. App.) 909 

La Velne v. Tiffany Springs & L>and C«. 

(MoJ 11S6 

Lay, Koyl v. (Mo. App.) 279 

League v. Brazoria County Boad Dist Ko. 

13 (Tex. Civ. App.) 1012 

Ledbetter v. Phillips (Mo.) 9 

Lcicht Hamlet v. (Tex, Qy. App.) lOM 

LesUe v. Carter (Mo.) 1190 

Lillie y. State (Tex. O. App.) 4S2 

Linden y. McClintock (Mo. App.) ti2 

Lippincott Breining v. (Ark.) 915 

Little V. Arkansas Trust & Banking Co. 

(Ark.) 629 

Little V. Nicholson (Tex. Civ, App.) 500 

Livingston v. Pugsley (Ark.) 925 

London & Lancashire Fire Ins. Co., Cbunn 

V. (Ark.) 307 

Louisville & N. B. (io. v. Greenbrier Dis- 
tillery Co. (Ky.) 296 

Lumbermen's Ins. Co., Terminal Ice & Pow- 
er Co. v. (Mo. App.) 568 

Lusk v. Craft (ArK.) It* 

Lusk, Starks v. (Mo. App.) 586 

Lusk, Taylor v. (Mo. App.) 81 

Lusk, Young v. (Mo.) S49 

Lydik, Chicago, B. I. & P. B. Co. y. (Mo.) t»l 
Lyke v. American Nat Assur. Co. (Mo. 

App.) 2ijj 

Lynch v. United Bys. Co. of St Louis (Mo. 
App.) SOd 

McAbee, Boaring Springs Independent 

School Dist V. (Tex. Civ. App.) 431 

McCamant v. McCamant (Tex. Ciy. App.). .109< 

McClintock, Linden v. (Mo. App.) S 

McConkey v. McConkey (Tex. Civ. App.)..U« 

McConnell, Stone v. (Mo.) 8« 

McDermand, Southwest Nat Bank of Kan- 
sas City V. (Mo. ApQ.) 12) 

McDonald v. ^tna Life Ins. Co. of Hart- 
ford, Conn. (Tex. Civ. App.) lOOi 

McDougle, Cameron & Webster Ck>., ^ber- 
nathy Bigby Co. v. (Tex. Ciy. App^. ... 50! 

McGuire v. Wilson (Mo. App.) 61 

McKinney, Boberts v. (Tex. Civ. App.)... 97 

McKinney v. State (Tex. Cr. App.) 90 

Mcr.€an County Bank v. Brown (Mo. App.) VS 

.McMuUen, Worley v. (Ark.) 106 

McNeil y. State (Ark.) 10« 

McNichols Furniture Co., Craig v. (Mo. 

App.) 7? 

McPeak y. State (Tex. Cr. App.) 7a 

McWhirt v. Chicago ft A. B. Co. (Mo.)... 83 



OASES BBPOBXXID 



BU 



Page 

Maegard t. Pacific Fire lu. Oo. of (Sty 

of New York (Mo. App.) 560 

Jlagjard v. Stnyvesant Ins. C«. (Mo. App.) 571 
Maginnis v. Missouri Pac. B. Oo. (Mo J. .1165 
Magnolia Petroleum Co. v. Ray ffex. Civ. 

AppJ 1085 

Mahony, Morgan v. (Ark.) 633 

Maier, Johnson v. (Mo. App.) ............. 143 

Mann & Co^ SpiUer v. (Tex. Gv. App.).. .1014 

MarshaU. Hight v. (Ark.) 438 

Martin 7. Blair & Hughes Oo. (Tex. Civ. 

App.) ..: 605 

Marbn v. Goodman (Tex. Cir. App.) 689 

Mairland Gasoalty Co., Commennal Bank 

T. (Mo. App.) 103 

Mfckel Realty & Investment Co., Comet v. 

(Mo, App.) 622 

Meeks, Commonwealth Bonding & Casualty 

Ins. Co. V. (Tei. Civ. App.) 681 

Meenach v. Crawford (Mo.) 879 

Memphis St K. Co. v. Cavell (Tenn.) 179 

Mendenhall v. Sherman (Mo. AppJ 271 

Merchants' & Farmers' Bank r. Citizens' 

Bank (Ark.) ) 650 

Meredith, Kuehn v. (Tex. OIv. App.) 886 

Metzger, Ktfe v. (Mo. App.) 610 

Meyers, Stranghnn v. (Mo.) 1159 

Michael, Pickett v. (Tex. CJiv. App.) 426 

Middleton, Terrell v. (Tex. Civ. App^. . ._. . 367 
Milra. Commissioners' Court of Trinity 

County V. (Tex. Civ. App.) 378 

Miller, BaU v. (Tex. CSv. App.) 688 

Miller v. Falloon (Mo.) 839 

Miller, Heagy V. (MoJ 888 

Miller v. Missouri Wrecking Ck>. (Mo.). ... 45 
Miller, R. L. Burke Music C!o. v. (Mo. App.) 141 

MiUer V. Staggs (Mo.) 1159 

Miller v. Summers (Ark.) 664 

Uiaers' Xiumber Co., Farmington Equitable 

Building & .Loan Ass'n v. (Mo. App.) . . . 555 
Missouri Dairy Co., King v. (Mo. App.) ... 284 
Missouri, E. & T. R. Co. v, QUcrease (Tex. 

Civ. App.) 714 

Missouri, K. & T. R. Co- Strother t. (Mo.) 1195 
Missouri, K. & T. R. (Do., WeUar v. (Tex. 

a?. Appj) 874 

Missouri, K, & T. R. Co. of Texas v. Card- 

weU (Tex. Civ. App.) 1078 

Missouri, K. & T. R, Co. of Texas, Con- 

nally v. fTcx. Civ. App.) 376 

Missouri, K. & T. R. Co. of Texas v, Har- 

rell Gin Co. (Tex. Civ. App.) 376 

Uissonri Pac. H. Co., Donoho v. (Mo. AppO 141 
Missouri Pac. B. Co., Johnson v. (Mo. App.) 282 
Missoori Pac. R. Co., Maginnis v. (Mo.). . .1165 
Missouri State Life Ins. Co. v. Crabtree 

(Ark.) : 173 

Missoori Wrecking Co., Miller ▼. (Mo.) ... 45 
Modem Brotherhood of America, Oidel- 

heide V. (Mq.) 1193 

Modem Woo<lineii of America, Clinton v. 

(Ark.) 939 

Modern Woodmen of America t. Yanowsky 

iTex. Civ. App.) 728 

Modrell v. Dunham (Mo. App.) 561 

ModreU v. Diuh'am (Mo. App.) 664 

Moffitt, Alben v. (Mo. App.f 903 

Moise, Pullman Co. v. (Tex. Civ. App.). ... 249 

Monck. Bockley T. (Mo.) 31 

Moody V, State (Tex. Or. App.) 758 

Morgan, JeqUns v. (Xex. Civ. App.). . ... . .1091 

Morgan v, Mahony (Ark.) 633 

Morgan, State ex inf. Wright v. (Mo.) 64 

Morgan Co. v. Buena Vista Veneer Co. 

(Ark.) 640 

Morino, De Wolff v. (Mo. App.) 620 

Morrison, O'Hanlon v. (Tex. Civ. App.)... 602 

Morrow, Brown v. (Ark.) 449 

Morse. Arkansas, l<. & Q. R. Go. v. (Ark.) 169 

Morton, Schuster y. (Mo.) 2 

Mt St. Mary's Cemetery Ass'n, MuUins v. 

(Mo.) 1169 

Mollins V. Mt. St. Mary's Cemetery Asa'n 

(Mo.) ...:: , 1169 

Uiion, Shtdts ▼. (Ark.)..... , 81« 



Faca 

Murrfiy Co. v. SatterfMd (Ark.) 927 

Myers \. Grantham (Tex. Civ. App.) 682 

Nabers, State v. (Tex. Cr. App.) 783 

Nabers, State v, (Tex. Cr, App.).. 784 

Nanny V. Vaughn (Tex. Civ. App.) 499 

Neely, Gensberg v. (Tex. Civ. App.) 247 

Neely v. Wilmore (Ark.) 637 

Nelms v. Orne (Ark.) 822 

Nevill V. Gulf, O. & S. F. R. Co. (Tex. Civ. 

App^ 888 

New Jersey Fhre Ins. Co. v. Balrd (Tex. 

Civ. App.) 35fi 

Neyland v. State (Tex. Cr. App.) 196 

Nicholson, Little v. (Tex. Civ. App.) 506 

Nix V. State (Ark.) 308 

Nolte, State ex ret., and to Use of Missouri 

Poultry & Game Co. v. (Mo. App.) 806 

North American Union, Hoette v. (Mo. 

App.) 790 

Vorth Kansas City Levee Dist. v. Hillside 

Securities Co. (Mo.) 852 

Norvell, Santa F6 Town-Site Oo. v. (Tex. 

Civ. App.) 978 

Nuckola, American Nat. Ins. Co. v. (Tex. 

Civ. App.) 497 

Oasis C31nb, Whiteside v. (Ma) 27 

O'Hanlon v. Morrison (Tex. Civ. App.) .... 692 

Oliver v. Smith (Tex. Civ. App.) 628 

Ordelheide v. Modern Brotherhood of Amer- 
ica (Mo.) 1193 

Orne, Nelms v. (ArkJ. 822 

Osvald V. Williams (Tex. Civ. App.) 1001 

Owens, Fitzpatrick v. (Ark.) 460 

Owens, State v. (Mo.) 1189 

Pacific Fire Ins. Co. of City of New York, 

Maggard V. (Mo. App.) 560 

Parker, Brandon v. (Ark.) 812 

Parker v. Frierson (Ark.) 162 

Parriah, Kaker v. (Tex. Civ. App.) 617 

Pavillard, Chicago, R. I. & Q. K. Co. v. 

(Tex. Civ. App.) 998 

Payne, Blount, Price & Co. v. (Tex. Civ. 

App.) 990 

Pearson v. Stote (Tex. Cr. App.) 386 

Peeples v. Aydelott (Ark.) 671 

Peil V. Warren (Tex. Civ. App.) 1052 

Pennsylvania Fire Ins. Co., Youn^ v.ifMo.) 856 
Pmer Automobile Co. v. St Louis Union 

Trust Co. (Mo. App.) 109 

Person v. Williams jArk.) 1063 

Pevito'v. Southern Gas & Gasoline Engine 

Co. (Tex. Civ. App.) 1009 

Pfeiffer Stone Co, v. Shirley (Ark.) 930 

Phelps V. Crites (Mo.) 3 

PhillipB, Fortner v. (Ark.) 318 

Phillips, Ledbetter v. QIo.) 

Pickard v. William J. Boms DetectiTe 

Agency (Mo. App^} 614 

Pickett V. Michael (Tex. Oiv. App.) 426 

Pierce-Fordyce Oil Ass'n v. Warner Drill- 
ing Co._(Tei. Civ. App.) 516 

Pilgrim, Townseud v. (Tex. Civ. App.)... 1021 

Pippins V. State (Tex. Oc. App.) 213 

Pitts V. Metzger (Mo. App.} 610 

Pittsburg A; Midway Coal Co. v. Laning 

Harris Coal Co. (Mo. App.) 263 

Planters' Cotton Co., Coffin v. (ArkJ 309 

P. M. Bruner Granitoid Co. v, Glencoe 

Lime & Oment 0>. (Mo. App.) 807 

Polar Wave Ice & ESiel Co., Bums v. (Mo. 

App.) 145 

Powell. J. W. York & Sons v. (Ark.) 628 

Powell V. State (Tex. O. App.) 334 

Prater v. Reichman (Tenn.) 305 

Pratt, Knoche v. (Mo. App.) 578 

Priebe v. Crandall (Ma App.) 605 

Public Service Commission, Union Pac R. 

Go. V. (Mo.) 827 

Publiahing Docket in Local Newspaper, In 

re (MoO 1174 ^^ . 

Pnckftt V. Haynes (Mo. App.) 91 / r^/-sr%\r> 

PngAey. Livingston v. (Ark.) 926by VjVjOy IC 



xiy 



187 SODTHWBSTBHN RSPOBTER 



Page 

PnllraaB Cki. t. Franks (Tex. Civ, App.). . . . S&l 
Pullmaa Co. t. Moise (Tex. Civ. App.) .... 248 

QaiUin t. gtete (Tex. Cr. App.) 190 

Qaiiic7, O. & K. C. R. Co., Bowles y. (Mo. 
App.) 131 

Raines, Citizens' Bank & Trust Co. v. 

(Art) 032 

Balaton y. Stainbrook (Tex. Ciy. App.). .. . 413 

Ramos y. State (Tex. Cr. App.) 1109 

Randleman v. Johnson (Arkl) 626 

Rankin y. AUnutt (Ark.) 034 

Ray, Magnolia Petroleum Co. y. (Tex. Ciy. 

App.) 1086 

Reddine, Chicago, B. L & P. R. Co. y. 

(ArkT ....VT.! 651 

Reed, High y. (Ark.) 168 

Reese, Texas Glass & Paint Co. y. (Tex. 

Ciy. App.) 721 

Reeves Lumber Co. v. Davis (Ark.) 171 

Iteichel, Bixeman v. (Mo. App.) 268 

Beichman, Prater v. (Tenn.) 305 

Reid T. St. Louis & S. F. B. Co. (Mb.). . . . 15 
Reliance Life Ins. Co. v. Beaton (Tex. Civ. 

App.) 743 

Besendez v. SUte (Tex. Cr. App.) 483 

Rice y. Scherts (Tex. Civ. App.) 245 

Bichey & Casey, Brady y. (Tex. Civ. App.) 508 
Bissmiller v. St. Louis & H. R. Co. (Mo. 

App.) ;■. 673 

Bitschy v. Carrels (Mo. App.) 1120 

B. L. Burke Music Co. y. Miller (Mo. App.) 141 
Boaring Fork Potato Growers v. C. C. Cle- 

mons Produce Co. (Mo. App.) 617 

Roaring Springa Independent School Dist. 

v. McAbee (Tex. Civ. App.) 431 

Roberts v. Board of Improvement of Im- 
provement Dist. No. 10 of Texarkana 

(Ark.) 666 

Boberta v. McKinney (Tex. Civ. App.) 076 

Roberts, Texas Power & Light Co. y. (Tex. 

Civ. App.) 228 

Boberts, Williamson v. (Mo.) 19 

Bobertson v. J(dmson (Ark.) 430 

Bobertson, State ex rel. SculUn y. (Mo.) 34 
Robinson, Sovereign Camp of Woodmen of 

the World v. (Tex. Civ. App.) 215 

Rogers, Bross V. (Mo.) 38 

Boleaon, Hood y. (Ark.) 1059 

Buediger, Semmes v. (Mo. App.) 604 

Buthcrford v. State (Tex. Cr. App.) 481 

Rutledge, Davenport v. (Tex. Civ. App.)... 988 

Rutledge, Ryan v. (Mo.) 877 

B. W. Williamson & Co., Texas & P. R. 

Co. y. (Tex. Civ. App.) 354 

Ryan v: Rutledge (Mo.) 877 

St Louia, I. M. & S. R. Co. y. Ingram 

(Ark.) 452 

St Louis, L M. & S. R. Co. v. Landa & 

Storey (Tex. Ciy. App.) 358 

St Louis, I. M. & S. R. Co., Slack v. 

(Mo. App.) 275 

St JU>uia, I. M. & S. B. Co. y. State 

(Ark.) 1064 

St Louis, I. M. & S. B. Co. v. Stewart 

(Ark.) 920 

St. Louis Southwestern B. Co. v. Carmack 

(Ark.) 635 

St Louis Southwestern B. Co., Sherwood 

V. CMo. App.) 260 

St Louis Union Trust Co., Peper Automo- 
bile Co. V. (Mo. App.) 109 

St Louis & II. It Co., Jackmann y. (Mo. 

App.) 786 

St Louis & H. R. Co., RissmiUer y. (Mo. 

App.) 573 

St Louis & S. F. R. Co., Blankenbaker v. 

(Mo.) 840 

St Louis & S. F. R. Co. v. Keathley (Ark.) 319 

St Louis & S. F. B. Co., Beid v. (Mo.) 15 

St. Louis & S. F. B. Co., Woods v. (Mo.). . 11 
St Louia & S. B. Co. y. Stewart (Mo.)... 886 



Pag« 



St Paul Fire & Marine Ins. Co. y. Laster 

(Tex. Civ. App.) 96J 

San Antonio & A. P. B. Co. y. Jackaon & 

Allen (Tex. Civ. App.) 488 

Sands, Williams v. (Mo.) 1188 

Sanneman, Van Trump y. (Mo. App.) 124 

Santa T6 Town-Site Co. y. Noryell (Tex. 

Ciy. App.) 978 

Satterfieid, Murray Co. y. (Ark.) 927 

Sayman, Foster v. (Mo.). 1198 

Scherta, Bice v. (Tfex. C5y. App.) 245 

Schneider v. Bunn (Ark.) 623 

Schoenhard v. Dunham (Mo. App.) 273 

Schofield V. Harrison Land & Mining Co. 

(Mo.) 61 

Schreiber, German Evangelical Protestant 

Congregation of Church of the Holy 

Ghost V. (Mo.) 845 

Schuster v. Morton (Mo.) 2 

Scog^n V. Morrilton (Ark.) 445 

Security Ins. Co., Terminal Ice & Power 

Co. V. (Mo. App^ 568 

Seelbinder v. Witnerspoon (Ark.) 325 

Self V. Albany Nat Bank of Albany (Tex 

Civ. App.) 



SeUs v. Brewer (Ark.) 

Semmes v. Buediger (Mo. App.). 
Sharp, Boyken v. (Mo. App.) .... 
Shear y. Bruyere (Tex. Civ. App.) 



982 
9(W 
604 
90 
243 
271 



Sherman, Mendenhall v. (Mo. App.) 

Sherwood v. St Louis Southwestern R. Co. 

(Mo. App.) 260 

Shimmin v. C. & S. Mining Co. (Mo. App.) 76 

Shirley, Hope y. (Tex. Civ, App.) 973 

Shirley, Pfeifter Stone Co. v. (Ark.) 930 

Short iEtna Ins. Co. v. (Ark.) 657 

Shorty. State (Tex. Cr. App.) 955 

Shulta y. Munn (Ark.) 316 

Sidler, Zinn y. (Mo.) 1172 

Simmoms v. State (Ark.) &i(i 

Simpson v. Federal Lead Co. (Mo. App.). .1123 
Slad^ y. St Louis, I. M. & S. B. Co. (Mo. 

App.) 275 

Smith y. First Nat Bank (Tex. Civ. App.) 233 
Smith, Harris County y. (Tex. Ciy. App.). . 701 

Smith, Oliver y. (Tex. Civ. App.) . 52S 

Smith V. State (Tex. Cr. App.) 75S 

Smith, Tyler v. (Tex. Civ. App.) 697 

Smith V. Wise County (Tex. Civ. App.) .... 705 
Southern Gas & Gasoline Engine Co., 

Pevito y. (Tex. Civ. App.) 1009 

Sonthern Traction Co. v. Wilson (Tex. Civ. 

App.) .J. 536 

Southern Woodmen v. Davis (Ark.) 638 

Southwestern Oil ft Gas Co. y. Denny 

(Tex. av. App^. 973 

Southwest Nat Bank of Kansas City t. 

McDermand (Mo. App.) 121 

Sovereign Camp of Woodmen of the World 

y. Bobinaon (Tex. Civ. App.) 215 

Sparks v. Stata (Tex. Cr. App.) 331 

Special School Dist No. 33, Greene Gonn- 

ty V. Howard (Ark.) 444 

Speer & Dow, Board of Oom'ra of Creek 

County, Okl., v. (Arit.) 315 

Spiller y. W. J. Mann & Co. (Tex. Civ. 

App.) 1014 

Springfield Gas & Electric Co., Williams v. 

(Mo. App.) 656 

Spruill, Crawford v. (Tex. Civ. App.) 361 

Staats, HiU v. (Tex. Civ. App.) 1039 

Staggs, Miller v. (Mo.) 1159 

Stainbrook, Balston v. (Tex. Civ. App.). . . 413 

Stamps, Bigham v. (Tex. Civ. App.). 733 

Standard Accident Ins. Co. of Detroit, 

Mich., Brunswick v. (Mo. App.) 802 

Standard Fire Ins. Co. of Hartford, Conn., 

Strawbridge v. (Mo. App.) 79 

Storks v. Lusk (Mo. App.) 5S6 

State, Arensman v. (Tex. Cr. App.) 471 

State, Baker v. (Tex. Cr. App.) 949 

State V. Baxr (Mo. App.) 575 

State, Basham v. (Tex. Cr. App.) 1J0«» 

State, Black v. (Tex. Cr. App.) 332 

Statej Bk)a8y. (Tax. Or, App.)^^,;^.^.. ^igj 



OASE^S BBPORTBD 



Xt 



Pace 

State ▼. Clark (Tex. Or. App.) 760 

State, Coleman y. (Tex. Or. App.) 481 

State, Coleman v. (Tex. Or. App.) 1199 

.State, Ouilla v. (Tex. Or. App.) 210 

State., Debth v. (Tex. Or. App.) 841 

State, De l/eoa y. (Tex. Or. App.) 485 

State, Derrick v. (Tex. CJr. App.) 759 

Sute, DoBcan ▼. (AA.) 906 

State, Ptereuson t. (Tex. Cr. App.) 476 

SUte ▼. Oanghan (Ark.) 918 

States 6(»-den t. (Ark.) 913 

State, Grooe t. (Arit.) 936 

State, Gafld ▼. (Tex. Cr. App.) 215 

State, Haley v., two cases (Tex. Cr. App.) 754 

State y. Hendricks (Mo. App.) 272 

State V. Hesse (Mo. App.) 671 

Sute, Holland t. (Tex. Or. App.) 944 

State, Hatspetb t. (Tex. Or. App.) 340 

Sute y. Isaacs (Mo.) 21 

Kt&te, Johnson y. (Tez. Or. App.) 336 

State y. Kapp (Mo.) 1178 

State, lillie y. (Tex. Or. App.) 482 

Sute, McKinney y. (Tex. Or. App.) 960 

Sute, McNeil -y. (Ark.) 1060 

State, McPeak y. (Tex. Or. App.) 754 

Sute, Moody ▼. (Tex. Or. App.) 758 

State y. Nabers (Tex. Cr. App.) 783 

State y. Nabers (Tex. Cr. App.) 784 

State, Neyland y. (Tei. Cr. App.) 196 

State, Nix y. (Ark.) 308 

State y. Owens (Mo.) - 1189 

State, Pearson y. (Tex. Cr. App.) 336 

State, Pippins y. XTe^- Cr- AppJ . . •« 213 

State, Powell y. (Tex. Cr. App.) 334 

State, Quillin y. (Tex. Cr. App.) 199 

State, Ramos y. (Tex. Or. App.) 1199 

State, Besendez y. (Tex. Cr. App.) 483 

State, Kutherford y. (Tex. Cr. App.) 481 

State, St. Louis, I. M. & S. R. Co, y. 

(Ark.) 1064 

State, Short y. (Tex. Or. App.) 956 

State, Simmons y. (Ark.) 646 

State, Smithy. (Tex. Cr. App.) 758 

State, Sparks y. (Tex. Or. App.) 831 

State, Thompson y. (Tex. Or. App.) 204 

State, AVatson y. (Ark.j 434 

State, Webb y. (Tex. (Jr. App.) 466 

State, Wilson y. (Art.) 440 

State, Wilson y. (Ark.) 937 

State, Wilson y. (Tex Or. App.). ........ 207 

State, Wodbright y. (Ark.) 166 

State, Woraham y. (Tex. Cr. App.) » .1199 

State, Young y. (Tex. Ct. App.) 754 

State ex in£ Wnght y. Morgan (Mo.).... 64 
State ex reL City of Monett y. Thurman 

(Mo.) 1190 

State ex reL (3ombs y. Staten (Mo.) 42 

State ex rel. Detroit Fire & ASanne Ins. 

Q). y. Ellison (Mo.) 23 

State ex rel. Hadley y. Greenyille Bank 

(Mo. App.) 697 

State ex reL Lasbly y. Elrkwood Leisure 

Hours' Social and Pastime Club (Mo. 

App.) 819 

State ex reL Lasbly y. Wurdeman (Mo.) . . . 267 
State ex rel. McCuUoch y. Taylor (Mo.). . .1181 
State ex reL Scanland y. Thompson (Mo. 

„App.) 804 

Sute ex reL ScnlUn y. Robertson (Mo.) . . 34 
State ex reL Wagener y. Cook (Mo. App.). . 621 
State ex reL Wagener y. Ook (Mo. App.). .1122 
State ex reL and to Use of Missouri Poultry 

ic Game Co. y. Nolte (Mo. App.) 896 

State Nat Bank y. First Nat Bank (Ark.) 673 

Staten, sute ex reL Ck)mbB y. (Mo.) 42 

Stephenson, Bounds y. (Tex. Ciy. App.)... 1031 
Stepney, Houston Oil 0>. of Texas y. 

(Tex. Gy. App.) 1078 

Stewart, St Louis, I. M. & S. R. Co. y. 

(Ark.) 920 

Stewart, St Louis & S. R. Co. y. (Mo.). . . 836 

Stone y. McConnell (Mo.) 884 

Straaner y. Carroll (Ar'c.) 1057 

Straaghan v. Meyers (Mo.) 1159 



P*Ka 
Strawbrldge y. Standard Ftrelm. Co. of 

Hartford, Conn. (Mo. App.) 79 

Strotiiery. Missouri, E. &T. R. Co. (Mo.). .1196 

ftuyyesant Ins. Co., Maggard y. (Ma App.) 671 
tnyyesant Ins. Co., Terminal Ice & Pow- 
er Co. y. (Mo. App.) i 669 

Sulliyan, Wehrs y. (Mo.) 826 

Sulzberger & Sons Oo. of America y. Hille 

(Tex. Ciy. App.) 992 

Summers y. Chicago, R. L &,P. R. Oo. (Mo. 

App.) .7.:.. 126 

Summers y. Cordell (Mo.) 6 

.Summers, Miller v. (Ark.) 664 

Summit Lumber Co., Crossly y. (Mo. App.) 113 
Supreme Forest Woodmen Circle, Tuite y. 

(Mo. App.) 137 

Swanson y. Bradshaw (Mo. App.) 268 

Tancred y. First Nat Bank (Ark.) 160 

Tankersley y. Jackaon (Tex. Ciy. App.). ... 985 

Taylor y. Lusk (Mo. App.) 87 

Taylor, State ex rel. MpCulloch y. (Mo.). .1181 

Taylor, Weatherton y. (Ark.). 450 

Terminal Ice & Power Co. y. American Kre 

Ins. (3o. (Mo. App.) 664 

Terminal Ice & Power Co. y. Cktmmercial 

Fire Ins. Co. (Mo. App J 669 

Terminal Ice & Power Co. y. Home Ins. 

Co. (Mo. App.). 668 

Terminal Ice & Power Oo. y. Lumbermen's 

Ins. Co. (Mo. App.) 668 

Terminal Ice & Power Co. y. Security Ins. 

Go. (Mo. ApD.) 668 

Terminal Ice & Power' Oo. y. Stuyyesant 

Ins. Co. (Mo. AppA. ; . . . 566 

Terrell y. Middleton (Tex. Oiy. App.) . .... 367 
Terrell Electric Light CJo., City of Terrell 

V. (Tex. Civ. App.) 966 

Texas Bldg. Co. v. Collins (Tex. dv. App.) 404 
Texas Cent R. Co. y. Driyer CTex. cSy. 

App.) ,. 981 

Texas Co., Houston Tl^ansp. Oo. y. (Tex. 

Ciy. App.) 430 

Texas Glass & Paint Go. T. Reese (Tex. 

Ciy. App.) , 721 

Texas Power & Light Oo. y. Roberts (Tex. 

Ciy. App.) 226 

l^Bxa8 Seed & Floral Co. y. Chicago Set & 

Seed Oo. (Tax. Oiy. App.) 747 

Texas & N. O. R. O. y. Jones (Tex. Oiy. 

App.) 717 

Texas & P. R. Co. y. R. W. Williamson & 

Co. (Tex. Ciy. App.) 864 

Thatcher Implement & Mercantile Co. y. 

Brubaker (Mo. App.) 117 

Thomas y. Des Arc (Ark.) 908 

Thomas, Friend y. (Tex. CHy. App.) 986 

TbomiMon, Horton v. (Ark.) 627 

Thompson y. SUto (Tex. Or. App.) 204 

Thompson, State ex reL Scanland y. (Mo. 

App.) 804 

Thurman, SUte ez reL CHty of Monett y. 

(Mo.) 1190 

Tiffany Springs & Land Co., La Yeine y. 

(Mo.) '. 1186 

Toberman, Mackey ft (3o. y. Gidley (Mo. 

App.) 693 

Town of Des Arc, Thomas y. (Ark.) 908 

Townsend y. Pilgrim (Tex. Oiy. App.) 1021 

Trinity County Lumber (3o. y. Cionner (Tex. 

Civ. App.) 1022 

Tuite y. Supreme Forest Woodmen Circle 

(Mo. App.) 137 

Tyler y. Smith (Tex. Civ. App.) 697 

Uhr, Brown v. (Tex. Civ. App.) 381 

Uhr y. Lancaster (Tex. Civ. App.) 379 

Underwood v. West (Mo. App.) 84 

Underwood Typewriter Co., Hughes y. 

(Tex. Civ. App.) 399 

Union Pac. R. Co. y. Public Service Com- 
mission (Mo.) 827 

United Rys. Oo. of St. Louis, Deubler v. 

(Mo. App.) 818 

United Rys. Co. of St. Louis, Lynch y. 
(Mo. App.) 80^y 



Google 



XTl 



187 SOUTHWBSXURN BSBOBTBB 



Paga 

VaUo. WdlsT. (Mo. Aw>J 621 

Van Trump t. SaBneman (Mo. App.) 124 

Vaseilopuloa t. Fabianoff (ila. App.) 106 

Vaughn. Nanny y. (Tei. Civ. App.) 499 

Villareal, Ex parte (Tex. Or. App.) 214 

Vogt Mach. Co,, Elkins T. (Ark.) 663 

Vo68 T. Des Moines & Mississippi Levee 
IMat No. 1 (Mo. App.) 820 

Wagner v. Binder (Mo.) 1128 

Walker, First State Bank & Trust Co. of 

Abilene v. (Tex. Civ. App.) 724 

Walker, Glens Falls Ins. Co. t. (Tex. Civ. 

App.) 1036 

Walker, Hildrith v. fMo. App.) 608 

WaUs, Jackson v. (Tex. Civ. App.) 676 

Waples, Beene v. (Tex.) 191 

Warner Drilling Co., Pierce-Fordyce Oil 

Ass'n V. (Tex. Civ. App:) 616 

Warren, PeU v. (Tex. Civ. App.) 1052 

Watkins Medical Co. v. Williams (Ark.).. 663 

Watson, Clow ▼. (Ark.) 176 

Watson, Fears v. '(Ark.) 178 

WaUon V. State (Ark.) 434 

Watson. Yates v. (Tex. Civ. App.) 548 

W. B. Clarkson & Co. v. Gans S. S. Line 

(Tex. Civ. App.) 1106 

W. D. Heeves Lumber Co. v. Davis (Ark.) 171 

Weatherton v. Taylor (Ark.) 450 

Webb V. Bowden (Ark.) 461 

Webb V. State (Tex. Cr. App.) 485 

Weber Implement Co. v. Acme Harvestin<r 

Mach. Co. (Mo.).... 874 

Welirs V. Sullivan (Mo.) 825 

Weller v. Missouri, K. & T. R. Co. (Tex. 

Civ. App.) 874 

Wells V. VaUo (Mo. App.) ffil 

West, Underwood v. (Mo. App.) 84 

Western Union TeL Co. v. Alexander (Tex. 

Civ. App.) 1016 

Western Union TeL Co. v. Griffis (Tex. Civ. 

App.) 348 

Western Union TeL Co., Jeffress v. (Tex. 

Civ. App.) 514 

Whitewde t. Oasis dab (Mo.) 27 

.Wichita Falls Traction Co. v. Berry (Tex. 

Civ. App.) 416 

Wichita River Oil Co., Barton v. (Tex. 

Civ. App.) 1043 

Wifrn'am Bowling & Athletic Club v. Esca- 

jeda (Tex. Civ. App.) 972 



Paga 

Wilkinson, Cross t. (Tex. CRv, App.) 345 

William J. Burns Detective Agency, Pidt- 

ard V. (Mo. App.) 614 

Williams, Elvans VM.two cases (Ark.) 446 

Williams, 3. R. Watkins Medical Co. t. 

(Ark.) 653 

Williams, Osvald ▼. (Tex. (Sv. App.) 1001 

Williams, Person v. (Ark.) 1063 

Williams V. Sands (Mo.) 1188 

Williams v. Springfield Gas & EUectric Co. 

(Mo. App.) 656 

Williamson y. Roberts (Mo.) 19 

Williamson & (3o.. Texas ft P. R. Co. v. 

(Tex. Civ. App.) 354 

Wilmore, Neely v. JArk.). 637 

Wilson, Black v. (Tex. (Sv. App.) 493 

Wilson, Brazos Valley Telegraph & Tde- 

_phone Co. v. (Tex. C!iv. App.) 234 

Wilson, Equitable Surety Co. y. (Ark.).... 940 

Wilson, McGuire y. (Mo. Ap|x) 612 

Wilson, Southern Traction Co. y. (Tex. 

Civ. AppO 536 

Wilson V. State (Ark.) 440 

Wilson V. State (Ark.) 937 

Wilson V. State (Tex. Cr. AppJ 207 

Winkleblack v. Great Western Mfg. Oo. 

(Mo. App.) 95 

Wisarkana Lumber Co., G. W. Jones Lum- 
ber Co. V. (Ark.) 1068 

Wise County, Smith y. (Tvx. CSv. App.).. 705 

Witherspoon, Seelbinder v. (Ark.V. 825 

W. J. Mann & O)., Spiller y, (Tex. OIv. 

App.) 1014 

Woods v. St. Louis & S. F. B. Co. (Mo.). . 11 

Woolbright V. State (Ark.) 166 

Worley v. McMuUen (Ark.) 1061 

Worsham y. State (Tex. Cr. App.) 1199 

Wurdeman, State ex rel. Lashly y. (Mo.) 257 

7anowsky, Modem Woodmen of America 

V. (Tex. Cav. App^ 728 

Yates V. Watson frex. Civ. App.) 548 

Yazoo & M. V. R. Co. y. Altman (Ark.). . . 656 

York & Sons v. PoweU (Ark.) 628 

Young y. Lusk (Mo.) 849 

Young y. Pennsylvaiiia Fire Ins. Co. 

(Mo.) 856 

Young v. State (Tex. Or. App.) 754 

Yzabal, Keller v. (Mo. App.) 576 

Ziegenheini In re (Mo. App.) 898 

Zinn V. Sidler (Mo.) 1172 



See End of Index for Tables of Southwestern Cases in State Reports 



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THE 



SOUTHWESTERN REPORTER 

VOLUME 187 



JOHNSON V. DIXIE inNING & DEVELOP- 
MENT CO. (No. 17969.) 

(Sapreme Court of Miasouri, Division No. 1. 
Jane 2, 1916.) 

Death «s949{1)— Action— Fucadinqb. 

Rev. St. 1909, {{ 5426, 5427, authoiizing an 
action for damages for negligent death, declare 
tbat the damages shall be sued for and recovered 
bj the same partiea and in the same manner as 
provided in section S425, authorizing an action 
for negligent death caused by negligence of an 
tmploji while managing an^ locomotive, car, or 
train. In action by an administrator tbereundec 
for the negligent death of his intestate, over 21 
7ean at the time of death, and leaving no wife 
or minor children, held, the petition must allege 
the names of the beneficiaries for whom be sues 
other than the estate, and the facts from which 
tfa« meosore of damages may be ascertained. 

[Ed. Note. — For other cases, see Death, Cent. 
Dig. a 64^66, 69 ; Dec. Dig. «=»49(1).] 

Appeal from Circuit Court, Jasper County ; 
J. D. Perkios, Judg& 

Action by John Q. Johnson, administrator, 
against the Dixie Mining ft Development 
Company. Judgmoit of tbe Springfield Court 
of Appeals affirming a judgment for defend- 
ant (171 Mo. App. 134, 156 S. W. 33) is cer- 
tifled to tbe Supreme Court Affirmed. 

Clay & Davis, of Joplln, for appellant 
Spencer, Orayston & Spencer, of Joplin, for 
respondent 

GRAVES, P. J. This case reaches us by 
certification from tbe Springfield Court of 
Appeals. A concise statement of tbe qnes- 
Uon involved is made by Farrlngton, J., in 
the majority <vtnlon of tbat court thus: 

"This action was inatitnted in the circuit court 
of Jasper county by John Q. Johnson, the ad- 
minigtrator of the estnte of Arthur Johnson, de- 
ceased, for damages for the alleged negligent 
killiag of the decMsed while in defendant's em- 
ploy. Deceased at tbe time of his death was 
over tbe age of 21 years, and left no wife, minor 
child or minor cbilaren, natural bom or adopted, 
surviving him. The petition charges that de- 
ceased lost his life by reason of the negligent 
failure of the defendant to furnish him a reason- 
ably safe place in which to do his work. The 
suit was bronght under sections 5426 and 5427, 
B. S. 1900. The defendant demurred to the 
petition for the reason that it failed to state 
facts sufficient to constitute a cause of action, 
in that tbe administrator failed to allege the 
name or names of tbe beneficiaries for whom he 
aoed and for a failure to allege a state of facts 
from which the measnre of damages in ao action 



brought under these sections conld be ascertain- 
ed. The petition merely alleges that plaintiff 
was tbe duly appointed administrator, set out 
the acts of negligence complained of and the 
death of the deceased resulting therefrom, and 
alleged that tbe estate of the deceased had sus- 
tained injury, and the prayer was as follows: 
'Wherefore plaintiff says the estate of the de- 
ceased has been damaged in the sum of $7,000, 
for which judgment is prayed.' The demurrer to 
the petition was sustained, and plaintiff, electing 
to stand on his petition, has appealed to this 
court, contending that an administrator suing 
under sections 5426 and 6427 does so for the 
benefit of the estate of the deceased, and is not 
required to allege the names of the beneficiaries 
for whom he sues other than the state, and is not 
required to allege facts other than the acts of 
negligence and tbe death of the deceased, nor to 
show the pecuniary loss for which defendant is 
called upon to answer in damages, except such 
as would naturally occur to the estate of the 
deceased." 

The case is reported In 171 Mo. App. 134, 
156 S. W. 33. It will be observed that the 
real question is whether since tbe amend- 
ment of our damage act an administrator 
sues for tbe benefit of tbe estate or for tbe 
benefit of beneficiaries other than the estate 
of tbe deceased. Tbe majority opinion holds 
tbat under our present damage act tbe ad- 
ministrator does not sue for the benefit of 
tbe estate, but tbat he sues for surviving ben- 
eficiaries, and tbe petition should name such 
beneficiaries and plead sucb facts as may be 
necessary to show tbe damages suffered by 
them tbrougb tbe death of tbe party. It 
therefore held tbat tbe judgment sustaining 
tbe demurrer and entering judgment for de- 
fendant by tbe trial court was right 

Since tbls case was certified bere tbe pre- 
cise question was ruled by tbe St Louis 
Court of Ai^ieals, and tbe views by tbat 
court expressed fully sustain tbe majority 
opinion of tbe Springfield Court of Apiieals. 
TroU V. La Clede Gaslight Co., 182 Mo. App. 
600, 169 S. W. 337. 

In Kirk ▼. Wabasb Railroad Co., 265 Mo. 
341, 177 S. W. 592, tbls court bad under con> 
sideration an aualogous question. In this 
case this court tbrougb Blair, J., gave ex- 
press approval to tbe holding of tbe St Louis 
Court of Appeals in tbe Troll Case, supra. 
We there said: 

"A number of questions are presented by tbe 
briefs, but there is one which is determinative of 
the case, and it alone need be considered. The 
action is brought under section 5425, 



0s>For other casM Me urn* toplo and KEY-NUMBBR In lUl Koy-Numbored Dlawts u>d IndoxM 
187 8.W,— 1 



rzn^y Google 



187 SOUTHWESTERN KEPORTBB 



(Mo. 



19<^, aiid°it°irai:f^mitt^ on -the trial that de- 
cedent left neither wife Iior children. There 
was neither allegation nor evidence that he was 
suryived by any one competent to take under him 
under the law of descents in this state. In view 
of this condition of the record, appellant con- 
tends that no case was made out, and that its de- 
murrer to the evidence should have been sustain- 
ed. The question thus presented has been de- 
cided (since this appeal was taken) by the St. 
Louis Court of Appeals. Troll v. (gaslight Co., 
182 Mo. App. 600, 169 S. W. 337. The question 
arose in that case upon a demurrer to the peti- 
tion, but the principle announced is applicable 
here. The authorities are collated and discuss- 
ed, and an examination of the opinion satisfies 
na that the correct conclusion was reached. The 
thoroughness of the discussion by Allen, J., and 
our approval of what is said by him render un- 
necessary a detailed consideration of the ques- 
tion presented." 

It tbus appears that the dispute between 
our Brothers of the Springfield court has 
been settled by this court before the submis- 
sion in this case. We are satisfled with our 
previous ruling, aud It follows that the judg- 
ment of the circuit court la the case at bar 
should be affirmed. 

It Is so ordered. All concur. 



SCHUSTEB et al. v. MORTON et oL 

(No. 17017.) 

(Supreme 0>urt of Missouri. Division No. 1. 

June 2. 1916.) 

Wiixa «=»78S— Election bt Devisee. 

A surviving hustuind entitled to the fee of 
one half of the land of which his wife had died 
seised in fee could not take such interest con- 
trary to the terms of her will, and also take a 
life estate in the other half under the will, but 
was put to his election whether to claim under 
the statute or under the will. 

pjd. Note.— For other cases, see WUla, Gent 
Dig. I 2034; Dec. Dig. «=783.] 

Appeal from Oircult Court, CJooper County; 
John M. Williams, Judge. 

Statutory proceeding by Viola Schuster 
and another against Charles E. Morton and 
another to adjudge and decree title to land. 
Judgment quieting title in defendant Mor- 
ton to one-half land In fee and awarding him 
a life estate in the other one-half, and plain- 
tiffs appeal. Reversed, and cause remand- 
ed to enable defendant to amend his answer 
and make bis election whether to claim under 
the statute or 'under the will. 

Roy D. Williams, of Boonvllle, for appel- 
lants. John Cosgrove and D. W. Cosgrove, 
both of Boonvllle, for respondent Morton. 

BLAIR, J. This is a proceeding under sec- 
tion 2535, R. S. 1909, to adjudge and decree 
the title to nearly 100 acres of land in Coop- 
er county. Tills appeal is from a judgment 
of the Cooper circuit court quieting title In 
defendant to one half of the land in fee and 
awarding him a life estate in the otlier half. 
Both parties claim under Mary K. Morton. 
who died testate, seised of an estate in fee In 
the lands In suit. Api)ellants are devisees 



under Mrs. Mort(M>'8 wilL Respondent was 
the husband of testatrix, and ahso a devisee 
under the will. Testatrix died without de- 
scendants In being capable of inheriting. 

The applicable portion of the will In ques- 
tion reads as follows: 

"First: I give and devise to my husband, 
Charles Edwin Morton, for and during bis nat- 
ural life, the farm on which I now live, con- 
sisting of ninety-six and forty hundredths (96.40) 
acres, situated in Lamine township, Cooper 
county, Missouci, and at his death to my sis- 
ters, Mrs. Vinie Plumlee and Mrs. Viola Schus- 
ter and Clara Oybeal Roby, who is now living 
with me at my home, equally, and in case the 
said Clara Cybeal Roby die before my said hus- 
band, I will that the above mentioned farm be 
divided equally between my two sisters, Vinie 
Plumlee and Viola Schuster." 

The petition alleged the devisees named 
were the owners of the fee in the entire tract 
subject to the life estate of respondent ; but 
that respondent made some claim to the fee, 
adverse to plaintiffs, and prayed that the ti- 
tle be defined and adjudged. Respondent ad- 
mitted testatrix was his wife, that she exe- 
cuted the will set up, that the title to the 
land was In her name, and that he claimed 
an Interest In the fee therein. He averred 
he owned one half the land in fee and a 
life estate in the other half. The agreed 
statement shows testatrix died May 2, 1910, 
leaving no children; that at her death she 
owned in fee simple the land in suit 

Respondent's position is that under section 
350, R. S. 1909, he is entitled to one half the 
land In fee, and that under his wife's will 
he Is entitled to a life estate In the remain- 
ing half. The section mentioned reads as 
follows: 

"Sec. 350. When a wife shall die without any 
child or other descendants in being capable of 
inheriting, her widower shall l>e entitled to one 
tialf of uie real and personal estate belonging 
to the wife at the time of her death, absolutely, 
subject to the payment of the wife's debts." 

Appellants concede respondent's right, un- 
der the facts, to take under section 860, but 
Insist he cannot both take under this sec- 
tion and under the will; i. e., that he can- 
not take one half the land In fee contrary 
to the terms of the will and a life estate in 
the other half under and In accordance with 
the will; but that he Is put to his election. 
The trial court took respondent's view, and 
held him entitled to one half in fee and a 
life estate In the remaining one half. 

The Judgment cannot stand. In Wood v. 
Trust Co., 265 Mo. loc. dt. 525, 178 S. W. 201, 
the authorities are collected and the rule 
stated thus: 

"It is a fundamental principle of law that one 
who accepts a lieneficial interest under a will 
thereby adopts the whole will, and renounces 
every right or claim that is inconsistent with 
the will. This is a principle of universal appli- 
cation, and it extends so far that, when a testa- 
tor in his will disposes of property wliich be- 
longs to a third party, and at the same time 
makes provision for that third party in bis will, 
the party whose property is so wrongfully dis- 
posed of cannot accept the provision made for 



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ber In the trill, withont anowing her property to 
be dspoaed of aa the will prorides." 

In that case the claim made in conflict 
with the will waa based npon section S51, 
B. S. 1909, a section analogons to section 
3tS0, bnt applying to the wife instead of the 
husband. In Undsley r. Patterson, dted in 
the Wood Case and reported In 177 S. W. 
loc. dt 832, Ll R. A. 1916F, 680, tbe claim 
made contrary to the provisions of tbe will 
wa« hased upon the same section relied on 
In this case— section 360, K. S. 1909. In 
this last-mentioned ease the whole matter 
is carefnUy considered, and what is there said 
disposes of every objection to the application 
of the general role to the facts of tills case. 

The Judgment is reversed, and. In accord- 
ance with the reaaest made In appellant's 
brief, the cause la remanded to the end that 
r^pondent may amend his answer and make 
his election whether he will claim under 
tbe statute or under the wlU. All concur. 



PHELPS T. ORITES. (No. 17976.) 

(Supreme Court of Blisaouri, Division No. 1. 

June 2, 191&) 

1. BAM MItJS ra ^924 — CONTBTAKOS — PbIOB 
OOITTBAOT. 

Where grantor had a right of way over ad- 
jauing land under contract with the owner, but 
in his deed merely conveyed hia "easement over 
the land acquired" from the owner, such words 
were merely descriptive of the way, but did not 
limit tbe grantee's rights to those of the grantor 
mider the contract. 

[Ed. Note. — For other cases, see Easements, 
Cent Dig. 8! 64-69 ; Dec. Dig. <&=24.] 

2. Easeuskts «=98(1>— Pbesobiption— Colob 
or TmJB— DBBD& 

Where grantor, who had a contractual right 
of way over adjoining land, by his deed con- 
veyed "his easement over such land," the gran- 
tee was justified in taking possession of the way 
goder his deed, and his possession was adverse 
to the world. 

[Ed. Note. — For other cases, see Kasements, 
Cant Dig. H 23, 27-33; Dec. Dig. «=S(1).] 

3. EASEMcnTS «=336(3)— Pbksoeiption— Evi- 

DXN'CB— SnFFICISNCT. 

Evidence held to show acquisition of abso- 
lute title by advene possession, under deed con- 
veying easeihent in right of way, under which 
(tantee and his successors occupied, undisputed 
by the owner, for 22 years. 

[Ed. Note. — For other cases, see Easements, 
Cent Dig. || 77, 78, 88, 98; Dec. Dig. <8=> 
38<3).] 

4. EAsnaNTS «=926(1)— Loss or Rionr. 

Forfeitures are not favored in tlie law, es- 
pecially where a right of way under contract 
<tf which grantee did not know, required acts on 
Us part in return for way, and he occupied un- 
der deed tram former owner purporting to con- 
vey an easement for 22 years. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. {| 72%-74; Dec Dig. ©=26(1).] 

5. Easements €==>53 — Rioht of Wat — Con- 
tracts— E/ITFobckiient. 

Where a deed purported to convey an ease- 
ment in a right of way absolute, and the gran- 
tee and Us successors and the owners of the 
Krvient estate for 22 years treated the occupan- 
cy as making the grantee the owner and in pos- 



CsaFor other carta Ma sam* topic and KEY-NUMBER In all Key-Numbarad DijresU and Indexai 



session, a prior contract of the owners of the 
servient estate and tbe grantor requiring the 
grantor to fence the way would not be enforced. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. {{ 117-119; Dec. Dig. <8=»53.1 

Appeal from Circuit Court, Vernon Coun- 
ty; B. Q. Thurman, Judge. 

Injunction by J. C. Phelps against B. A. 
Crltes. Decree for plaintiff and order deny- 
ing new trial, and defendant appeals. Af- 
firmed. 

Plaintiff commenced tbljf proceeding by 
injunction in the drcnit court of Vernon 
county. Mo., against above-named defend- 
ant, to restrain him from closing or obstruct- 
ing a roadway, used by respondent, running 
north on the line between tbe northeast quar- 
ter of the northwest quarter and the north- 
west quarter of the northwest quarter of 
section 13, township 36, range 32, to the 
county road on the nortii side of said sec- 
tion. Tbe answer admits that defendant is 
the owner of the northeast quarter of the 
northwest quarter of section 13 aforesaid, 
and that plaintift is the owner of the south- 
east quarter of tbe northwest quarter of said 
section IS. The answer then sets out the 
legal effect of a contract between L. H. Par- 
malee and John T. Blrdseye, dated April 24, 
1880, in reference to above roadway; and 
alleges that in September, 1889, said Blrdseye 
conveyed said southeast quarter of the north- 
west quarter of section 13 aforesaid, to 
plaintiff, including the easement In respect 
to said road, which Parmalee bad conveyed 
to Blrdseye as aforesaid. It is then averred 
In the answer that plaintiff failed and refus- 
ed to keep up the fences, etc., as required by 
the said Parmalee-Blrdseye contract, and 
renounced said contract, etc. 

It appears from the evidence, that on April 
24, 1889, John T. Blrdseye, party of the first 
part, and L. H. Parmalee, party of the sec- 
ond part, entered into a written contract as 
between themselves, which reads as follows: 

"That whereas said John T. Blrdseye owns the 
S. E. % of N. W. %and said Parmalee owns 
the N. % of the N. W. % and the S. W. % 
of N. E. yi, all in section 13, in township 35, 
of range 32, and said L. H. Parmalee has given 
said John T. Birdseye a right of way out from 
his land north on the line between the N. E. % 
of N. W. % and the N. W. % of N. W. % of 
said section 13 to the county road on the north 
of said section, and said John T. Birdseye has 
permitted said Parmalee to join to and use the 
fence on the east and north of said Birdseye's 
40 acres. Now it is agreed and contracted that 
said Birdseye, or liis assigns, shall have the free 
use of said right of way out to the public road 
as aforesaid so long as he shall keep and main- 
tain a good hog-tight fence on the lines between 
tbe lands of said Birdseye and Parmalee and 
permit said Parmalee or liis assigns to use the 
same as a division fence. And sairl John T. 
Birdseye and bis assigns agree and contract to 
keep up such fence as aforesaid and permit said 
L. U. Parmalee to use the same forever. 

"It is further agreed that if said Birdseye, or 
his assigns, wish to keep an open lane out on 
said right of way then he or his assigns will 
keep up a lawful fence on tlie east side there- 

-oy 



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of from hit premiaM to the bam lot of said 
Parmalee. And if he does not desire to keep an 
open lane, then he shall put in a gate at the end 
of said Parmalee's opening and close the same 
whenever it is used by said Birdseye, or bis as- 
signs, or persons using it for his boaiiiess or 
pkasure." 

This contract was acknowledged, but nev- 
e» recorded. 

On September 28, 1889, John T. Birdseye, 
for the expressed consideration of $1,300, 
sold to plaintiff, Joseph C. Phelps, the south- 
east quarter of the northwest quarter and the 
northeast quarter of the southwest quarter 
of section 13, township 35, range 32, in Ver- 
non county aforesaid, and made blm a deed 
with full covenants of warranty therefor. 
After the description of the land conveyed, 
the deed to plaintiff contains the following: 

"And I also convey hereby the easement over 
the west side of the northeast quarter of the 
northwest quarter procured from tj. H. Parmalee 
April 24, 1889, and in the section first above de- 
scribed." 

Plaintiff moTed onto the above land bought 
from Birdseye, in March, 1890, and contin- 
ued to use, without interruption, the roadway 
in controversy, from said date to October, 
1912 .when defendant built a fence across the 
road. The evidence fails to show that Birds- 
eye, after the 24th of April, 1889, up to the 
time he sold to plaintiff, ever built the hog- 
tight fence called for In said contract, or 
that he complied with any of the require- 
ments of said contract 

Henry Short, who lived In that vicinity 
since 1873, testified, in reference to the date 
when said road was opened, as follows : 

"I don't remember just the year, but it has 
always been an opened road since '73; starting 
from that, any time it has never been closed np 
until Mr. Orites closed it." 

This witness also testified that Parmalee, 
who was In possession of the land, told him 
that he had sold Birdseye the road. Rufe 
Rlggs testified that this lane or roadway was 
fenced on each side in 1887 or 1888, and was 
used as a road after that date. In fact, the 
evidence conclusively shows that, for more 
than 20 years before the road ,was fenced by 
defendant in the fall of 1912, the plaintiff 
and bis family, as well as his tenant, bad 
openly, notoriously, continuously, and under 
a claim of right been using this lane or road 
as a means of exit to the public road on the 
north, from his own land. 

Plaintiff got the above contract from Birds- 
eye, after he bought the land from the lat- 
ter, and before he took possession of same 
In the spring of 1890. He retained the con- 
tract, and testified, at the Instance of de- 
fendant, as follows: 

"Q. Have you ever performed any of the work 
prescribed in this contract on the road or fences? 
A. No, sir. Of course, I have made fences there, 
but I never did it with regard to this contract 
at aU." 

Plaintiff further testified, <m cross-exami- 
nation] 

"Q. Then yon claim under that deed and this 
contract together? A. No, sir, I never claimed 



under the contract at all, because T expected to 
hold Mr. Birdseye all the time for the road." 

Plaintiff testifled that he put the contract 
in bis madiine drawer when be received It 
from Birdseye; that it had remained there 
until he got out his deed to show it to de- 
fendant in the fall of 1912; that the con- 
tract fell out of the deed; and that he had 
forgotten all about the contract during tbe 
23 years It had remained there. 

Upon a careful reading of the record, we 
are of the opinion that the evidence shows 
that neither Birdseye nor the plaintiff ever 
complied with the requirements of the con- 
tract between Parmalee and Birdseye, nor 
did either ever attempt to do so. The evi- 
dence is equally as clear that neither Parma- 
lee nor any of those claiming under or 
through him, prior to the fall of 1912, ever 
made any complaint about the alleged fail- 
ure of plaintiff to build a good hog-tight 
fence on the lines between plaintiff and de- 
fendant, or. his failure to comply with said 
contract in any respect The evidence like- 
wise shows that the fences along the lane 
in controversy, as well as the other fences 
mentioned in said contract, were repaired 
by plaintiff, as well as the former owners 
of the northeast quarter of the northwest 
quarter of section 13, aforesaid, and their 
respective tenants. In fact the repairs made 
were such as adjacent property owners mlgbt 
well have made, had there been no contract 
in existence. The lane had been there and 
constantly used by plaintiff, his family, and 
tenants for more than 20 years, when de- 
fendant bought his land from Parmalee. Oe- 
fendant knew the roadway was there and 
used as aforesaid, and made no objections to 
the use of same by plaintiff as an easement 
until he saw the contract heretofore men- 
tioned, in the fall of 1912. 

Defendant's testimony was In some re- 
spects contradictory of that offered by plain- 
tiff; and especially in regard to alleged ad- 
missions made by plaintiff, concerning the 
obligations to fence, etc., imposed by the 
contract aforesaid. Plaintiff also Introduced 
evidence in rebuttaL Tbere is no controver- 
sy, however, over the fact that plaintiff took 
possession of said roadway in 1890 ; that he 
continued In the open, notorious, continuous, 
exduslve, and uninterrupted possession of 
same, until it was fenced by defendant ta 
the faU of 1912. 

The trial court, after hearing all the evi- 
dence, found the issues In favor of plaintiff 
and rendered its decree accordingly. De- 
fendant, in due time, filed his motion for a 
new trial, which was overruled and the canse 
duly appealed to this court 

Homer M. Poage, of Nevada, Mo., for ap- 
pellant W. M. Bowker, of Nevada, Mo., for 
respondent 

RAILET, 0. (after stating the facts as 
above). [1] I. On September 28, 1889, John 
T. Birdseye and wife, for the expressed con^ 



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SUNOtBRS V. CORDXUi 



ridemtlim ot $1,800, executed and delivered 
to plalnttfl a deed, with fall covenants of 
varrantr, conreying to him the sontbeast 
qaarter of the northwest quarter and the 
northeast quarter of the southwest qaarter 
of se<:tlon 13, township 86, range 82, In Ver' 
Don county. Mo. Following the above de- 
acriptlon, said deed contains the following: 

"And I also convey hereby the easement over 
tbe vest sida of the northeast quarter of the 
northwest quarter procured from L. H. Parmalee 
April 24, 1889, and in tbe section first above 
docribed." 

This deed does not in terms refer to the 
oontiact between Parmalee -and Bi^rdseye, 
Dor does it refer to the deed made by Parma- 
lee to BIrdseye for plaintiff's land aforesaid. 
Tbe above qnoted langnage, "procured from 
L. H. Parmalee April 24, 1888," is simply de- 
BCripUve of the location of the road in con- 
troversy, and distinguishes it from any oth- 
er road. Tbe above description, when consid- 
ered in connection with the fact, tliat the 
road had already been there since 1873 and 
fenced on each side since 1687 or 1888, was 
raffident to locate the road without any ref- 
erence to the contract aforesaid. The deed 
from BIrdseye to plaintiff did not n&dertake 
to convey the easement upon the same terms 
and conditions upon which BIrdseye had re- 
celfed It from Parmalee. Ou the contrary, 
Blrdseye's deed to plaintiff warrants the title 
to the easement as wdl as the land conveyed. 

[2] In view of the foreg<dng, we think the 
plaintiff was Justified in taUng possession 
of the above easement in 1880, under tbe 
terms of his deed, and that the possession 
TUdi he then took was adverse to the world. 

[3] Upon a fall and carefnl consideration 
at all the testimony, we are of the opinion 
tbat the oondnsion reached iby the trial 
ooort, to tbe ^ect that plaintiff bad ac- 
qnlred an absolute title by adverse posses- 
don to the easonent in controversy, before 
defendant bought his land, is fully warrant- 
ed by the fkcts in the case, and meets with 
our ai9r«yTaL 

Plaintiff therefore had a good title to said 
roadway when it was fenced by defendant in 
tbe fall of 1012. Boyce T. Missouri Pacific 
By. Co., 108 Mo. 683, 68 8. W. 920, 68 L. R. 
A. 442; Sanford v. Kern, 223 Mo. 616, 122 
8. W. 1061; Power t. Dean, 112 Mo. App. 
288, 86 S. W. 1100. 

[4, f ] II. Tbe contract between Parmalee 
and BIrdseye was executed on April 24, 1889. 
BIrdseye <Ud not comply with the terms of 
said contract before be sold to plaintiff; nor 
did Parmalee, daring said period, imdertake 
to enforce the provisions of said agreement, 
or to make any complaint in respect to Birds- 
eye's failure to carry oat its provisions. Aft- 
er plaintiff bought bis land from BIrdseye, 
he made no effort to build or maintain a 
hog-tight fence^ or to comply with the pro- 
visions of said agreement Neither Parma- 
lee nor any of bis successors in title, before 



October, 1912, ever made any complaint Ui 
regasd to plaintiff's failure to comply with 
the contract. On tbe other hand, prior to 
October, 1912, both plaintiff and those claim- 
ing under Parmalee acted on the theory that 
respondent owned, and was in the exclusive 
possession of, said easement. Plaintiff had 
no knowledge of the existence of the con- 
tract between Parmalee and BIrdseye, when 
he bought bis land from the latter on Sep- 
tember 28, 1889. He did not learn of its ex- 
istence until after Christmas, 1880. The con- 
tract recites that Parmalee — 
"has given said John T. Birdscye a right of way 
out from bis land north on the line between the 
N. B. % of N. W. \ and the N. W. Vi of N. W. 
^ of said section 13 to tbe county road on the 
north of said section, and said John T. BIrdseye 
has permitted said Parmalee to join to and use 
the fence on the east and north of said Birds- 
eye's 40 acres." 

The contract does not provide for a for- 
feiture of said easement, in case BIrdseye 
failed to carry out the provisions of the con- 
tract. Forfeitures are not fftvored by the 
law, and especially under such clrcnmstauces 
as those disclosed by the record in this case, 
Tetley v. McBlmurry, 201 Mo. loc. dt 894, 
100 S. W. 37, and cases died. All the par- 
ties in interest therefore, having proceeded, 
from 1890 to 1912, upon the theory, that 
plaintiff was the owner and in possession of 
said roadway, it would neither be equitable, 
nor Just to allow defendant, at this late 
date, to eiforce the provisions of said con- 
tract as against the plaintiff, even If the lat- 
ter were claiming title thereunder. 

m. We have fully considered all the facts 
presented in the record before us, and have 
reached the c<mclasion that the decree of 
tbe trial court was for the right party. 

The Judgment below is accordingly ar- 
flrmed. 

BROWN, O., concurs In closing paragraph 
and in result, without considering other 
questions. 

PiSR CURIAM. The foregoing opinion of 
RAILiET, C, is adopted as the opinion of the 
court. All concur; BOND, J., in result. 



SUMMERS et al. v. CORDELL at aL 
(No. 17953.) 

(Supreme Oonrt of Missouri, Division No. 1. 
June 2, 1016.) 

1. Apfeai, AifD Ebbob «=761— Sufficiknot 
Of Brief— Points and Authoritieb. 

Under Supreme Court rule 15 (168 S. W. 
iz) the points and authorities of appeUants* 
brief should contain a brief statement of facts 
relating to each point separately presented, 
showing the page of record where testimony can 
be found, and by appropriate lan^age should ap- 
ply the authorities dted to each point. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. { 3006; Dec. Dig. <8=>761.] 



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2. HlOHWATS «S>6S — BSTABLISBiaSNT OF 
COONTT BOAD — JUDOMEirr OF CIOJDNTY 

OotfBT — COLLATERAI, ATTACK. 

Under Rev. St. 1909, i 10435, requiring the 
petition for the establishment of a new road to 
be accompanied by the names of all resident per- 
sona owning lands through which such road will 
pass, together with the amount of damages 
claimed by them, the petition need not contain 
such information, and, where the record affirma- 
tively shows that such information accompanied 
the petition, that due notice was given as re- 
quired by section 10436, and that commissioners 
were duly appointed to assess damages under 
section 10438, the amount of which was paid in- 
to court, the order of the county court is not 
subject to collateral attack in an action to en- 
join the opening of sach road. 

[Ed. Note.— For other cases, see Highways, 
Cent. Dig. f 168; Dec Dig. <^=a63.1 

3. HlOHWATB ^=364^K8TABLISH>a:NT— JVDO- 
ITENT OF OOUNTT OotWT — SUFFICIKNOT OF 

CoLt^TBRAL Attack. 
Where the county court acquires jurisdic- 
tion over the proceedings for the establishment 
of a road and over the proper parties by duly 
posted notices, the action of the court in order- 
ing a survey, appointing commissioners, etc., 
cannot be collaterally attacked in a suit to en- 
join the opening of such road. 

[Ed. Note.— For other cases, see Highways, 
Cent. Dig. |{ 165, 334; Dec. Dig. <S=»64.] 

4. Appeal and Ebrob <3=>877(2) — Review — 
Errors Prejudiciai. to Appellant. 

Only errors that are prejudicial to appel- 
lant will be reviewed. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. S§ 3563, 3564; Dec. Dig. «=» 
877(2).] 

5. Highways ®=»58(3), 64 — Establishment 
BT Statutory Prockedinos— Appeal and 
EmoR— Collateral Attack. 

The order of the county court establishing a 
new road and assessing damages is appealable to 
the drcuit court under Rev. St. 1909, g 10440, 
and, where no objection to the proceedings nor 
exceptions to the report of damages was made, 
nor any appeal taken, errors in the proceedings 
not jurisdictional cannot be raiseil on collateral 
attack in proceedings to enjoin the opening of 
the road. 

[Ed. Note. — For other cnsps, sec Hishwavs, 
Cent Dig. S§ 165, 179-183, 334; Dec. Dig. <5=» 
5S(3), 64; Appeal and Error, Cent. Dig. S 575.] 

6. HionwAYS <3=364 — Establishment by 
Statutory Proceedings — Appeal and Ea- 
ROR— Collateral Attack. 

The competency of commissioners appointed 
by the county court under Rev. St. 1909, f 
10438, to assess damages in establishing a new 
road and the insufficiency of the damages are 
questions that cannot be reviewed in collateral 
attack on an order establishing the road in an 
action to enjoin the opening of the road. 

[Ed. Note. — For other cases, see Highways, 
Cent. Dig. §§ 165, 334 ; Dec. Dig. (S=>64.] 

7. CoDRTs €=>87— Records— Personal Let- 
ter BY Judge. 

A court of record must speak through its 
record, _ and a letter written by one of three 
judges is not bindin<! on the court, regardless of 
personal views expressed therein. 

[Ed. Note.— For other cases, see Courts, Cent. 
Dig. {g 806-310; Dec. Dig. <S=>87.] 

8. Highways <S=»64 — Establishment— Col- 
lateral Attack— Misleading Letters of 
Judge— Effect. 

The plaintiff in proceedings to enjoin open- 
ing of road cannot complain that he was misled 
by letter of presiding judge of county court 
where commissioners were appointed to assess 



damages more than a year thereafter withrat 
any remonstrance or objection by him. 

[Ed. Note.— For other cases, see Highwaj^, 
Cent. Dig. gg 165, 334; Dec. Dig. iS=>64.] 

Appeal from Circuit Coart, Howell Comi- 
ty; W. N. Evans, Judga 

Application by John Summers and otheni 
against W. C. Cordell and others to restrahi; 
the opening of a public road. From a jodg- 
ment dissolving a temporary injunction, 
plalntUTs appeaL Affirmed. 

On December 4, 1911, appellants filed a pe- 
tition for Injunction against respondents, 
Cordell, Vaughn, and Bellew, as judges of 
the county court of Howell county aforesaid, 
and Offield, as road overseer, alleging tberet 
In that said county court had entered of reo 
ord an order establishing a new public road' 
In Spring Creek township (describing sameU 
and requiring Offleld, as road overseer, t« 
open said road at the expiration of 100 da;i 
from the date of said order; that plaintiffii 
are landowners along the proposed new pull; 
lie road; that they each refuse to give the 
right of way for said road ; that said Offielili| 
as overseer, is threatening to open said road, ' 
and is about to proceed to open same, andj 
will. If not prevented by order of the court, 
proceed Immediately to open said road, to 
tear down the fences of plaintiffs and more 
the same back a sufficient distance to a^-- 
quire land for said road, and will appropriate 
the lands of plaintiffs for such purpose It 
la then alleged In petition that the order ot 
the county court aforesaid Is void, and five 
different grounds are set forth therein in 
support of said contention. The petition 
concludes with a prayer for Injunctive relief. 

Defendants answered, and admitted there- 
in that they are officers as charged In peti- 
tion, and that they are proceeding to open 
said road under a valid order of the county 
court They deny each and every other al- 
legation of petition. 

Upon a hearing before the trial Judge the 
latter dismissed plaintiffs' bill, dissolved thi 
Injunction theretofore issued, and in doe 
form entered judgment for defendants. 
Plaintiffs filed a motion for a new trial, aui 
also a motion In arrest of judgment. Boib 
motions were overruled, and the case appeal- 
ed to the Springfield Court of Appeals. Ii 
appearing from the record that the title t< 
real estate is involved, the case was properlj 
transferred by the Court of Appeals to thii 
court. The facts disclosed by the record, aj 
far as necessary, will be considered in thi 
opinion to follow.- 

J. N. Burroughs, of West Plains, for ap 
pellants. 



RAILET, O. (after stating the facts a 
above). [1] L Rule 16 of this court (160 S 
W. ix) provides that: 

"All briefs shall be printed and shall contai 
separate and apart from the argument or discui 



«a»For othar cuai SM wme topla and KBY-NUMBEUl In all Key-Numtarad DIcmU and IsdasM ^ 



Mtt) 



BtrkMi^ms ▼. coKDiELt/ 



■IT 



«ion of aathoritteB, a sttMment, In niinimlcal oiv 
der, of the points relied on^ together witn b dta- 
tiiHi of aotuoritieB appcopnate under each point. 
And any brief failing to comply with thi» rule 
may be disregarded by the court. 

"The brief filed by appellant shall distinctly 
asd separate allege the erroia conunitted by 
die inferior conrt, and no reference will be per- 
Ditted at the anument to the errors not thus 
ipecified, unless for good cause shovn the court 
■hall otherwise direct." 

Appellants' brief does not come up to the 
requirements of the above rale. The "points 
and authorities'' do not contain any refer- 
ence to the pages of the record where the 
testimony can be found, nor is there any at- 
tempt to apply the anthorities cited to any 
particular part of the record. The points 
and authorities simply contain statements of 
abstract propositions of law, without the 
slightest reference to the record. They 
ihoQld contain a brief statement of the facta 
relating to each proposition presented, with 
the page of the record where the testimony 
can be found, and by appropriate language 
apply the authorities cited to the points we 
are called upon to consider. A compliance 
with the above suggestions would relieve the 
court, in many cases, of a vast amount of 
labor In searching the record for the testi- 
mony In order that we may consider the 
same in the light of the authorities cited and 
relied upon by counsel. 

[2] 11. It is contended by appellants that: 

"The petition to the county court was void, 

for the reason that it did not give the names of 

these appellants as landowners to be affected by 

said road, nor the damages claimed by them." 

Secti(« 10435, R. S. 1909, relates to the es- 
tablishment of new roads, and, among other 
things, provides that: 

"Said petition shall be accompanied by the 
names of all resident persons owning land 
through which said proposed road or change or 
rftooation of road shall run, with the amount of 
damages claimed by them, so far as can be as- 
CFftained, and also the names of those who are 
willing to give the right of way for said pro- 
posed road or change of road," 

The petition presented to the county court, 
among other things, contains the following: 

"And we further aver that said new public 
road is entirely practicable and a public neces- 
sity. And we farther aver that said public road 
is, whenever practicable, olong government sur- 
reys, and that this petition is accompanied by 
the names of all resident and other persons own- 
ing land through which said public road shall 
run, with the amounts of damages claimed by 
each of them so far as can be ascertained, and 
also by the names of all those who are willing 
to give the right of way for said proposed public 
wad." 

It will be observed from comparing the pe- 
tition with the requirements of section 10436, 
mpra, that it follows the language of the 
statute. 

In Halter t. Leonard, 223 Ma loc. dt 292. 
122 S. W. 706, Judge Gantt, speaking for Di- 
vision No. 2, said: 

"There is no warrant in the statute for the 
oonteDtion that the petition Itself should contain 
these names. Fall and complete jurisdiction 
was conferred upon the county court to pass up- 
on tht calBdeo<7 of tUs petition, and to find as 



a matter of fact dtat it was accompanied by- the 
list of landowners as provided by the statutes. 
As said in Baubie v. OsRman, 142 Mo. loc. dt. 
505 [44 S. "W. 389] : The county court having 
the exclusive Jurisdiction for the laying put and 
opening public roads, and having acquired juris- 
diction in thi» particular cose by the notice and 
petition, its findings and judgment are not open 
to collateral attack, and its judgment is entitled 
to every presumption in its favor. lingo v. 
Burford, 112 Mo. 149 [20 S. W. 469] ; Snoddy 
V. Pettis County, 45 Mo. 361; Rose v. Kansas 
CSty, 128 Mo. 135 [80 S. W. 5ia]' " 

There is no testimony In the record be- 
fore us tending to show that the above alle- 
gation of petition In reference to names of 
' property owners, etc., having accompanied 
I said petition, was not true. Plaintiffs offered 
[ in evidence the record of the county court, 
; which reads as follows: 

I "Now, the above cause coming on again to be 
' heard, and the county highway engineer and ex 
' officio road commissioner has tiled herein his re- 
port, from which said report It appears that 
Thurman Tabor, John Tabor, John Summers, 
W. 0. Edmonds, J. W. Fox, J. O. D. Davis, J. 
F. M. Dooley, N. T. Edmonds, J. W. Ix)rance, 
and J. L. Calloway have failed or refused to re- 
linquish the right of way for said road : It is 
therefore ordered by the court that Arch David- 
son, John T. Kichardson, and W. C. Hocntt be, 
and they are hereby, appointed to act as com- 
missioners," to assess the damages, etc. 
Section 10438, R. S. 1909, reads as follows: 
"Bnt if it appear that any person or persons 
through whose lands such prc^osed road • • * 
should run have failed or refused to relinquish 
the right of way, and are not willing to tnke the 
amount of damages offered them by the court or 
petitioners, • • • the county court shall ap- 
point, by order of record, three disinterested 
freeholders, of the county, etc., to assess the 
damages. 

In addition to the foregoing, the county 
court, in Its final order establishing said road, 
affirmatively set out the above matters, and 
recites therein the names of those in whose 
favor damages had been assessed by the com- 
missioners, as well as the amount allowed 
each. It redtes the names of those to whom 
no damages were allowed. It also recites 
that the damages allowed by said commis- 
sioners were paid into court In addition to 
the foregoing, the petition for injunction 
herein contains the following: 

"Plaintiffs further state that they each and 
all own land along the proposed new public 
road; that they each refuse to give the right ot 
way for said road." 

In the proceedings before the county court 
the petition for the road was in proper form. 
It contained the requisite number of quali- 
fied petitioners, and literally complied with 
the terms and provisions of section 10435, 
R. S. 1909. Due notice was given as re- 
quired by section 10436, R. S. 1909. The 
county court affirmatively found and entered 
of record that the requirements of said sec- 
tions 10435 and 10436 had been compiled 
with. Keeping In mind that this is a collat- 
eral attack upon the proceedings of the coun- 
ty court. In respect to a matter over which 
It had exclusive original Jurisdiction, and 
there being nothing 
controvert the 



ive original junsamion, ana 
thing In the record tending to C^ r^r\rs\o 
aUegatlons of petition la re^y VJVjiJ VIC 



187 SODTHWBSTBStN BJSPQBTBH 



(Mo. 



spect to said matters, it is dear that tbe fore- 
going contention of plalntlfb Is not sustained 
by tbe record. 

[S] III. It is insisted by plaintiffs that 
there is notblng in tbe record which "shows 
a finding by the conrt as to tlie probable 
amount of damages accruing to landowners 
and other expenses attending the opening of 
the road or any order requiring payment of 
the same by petitioners." The record of the 
coimty court, introduced by plaintiffs, re- 
cites, that: 

"Commissioners' report accepted and damagef^ 
paid in, and road ordered open, all parties faiive 
100 days to move fences from August 17, 1911." 

It also appears from tbe final judgment of 
the county conrt that the damages assessed 
in favor of plaintiffs were paid into court 
The county court having acquired full Juris- 
diction over tbe subject-matter, and the par- 
ties interested therein having been properly 
brought before the court by the posting of 
proper notices, the action of said court in or- 
dering a survey, appointing commissioners, 
etc., cannot be declared void in this collateral 
proceeding, even if it failed to ascertain be- 
forehand the probable amount of damages ac- 
cruing to landowners, etc. We are at a loss, 
however, to understand what just grounds of 
complaint these plaintiffs can have on ac- 
count of said alleged failure of the court, for 
tbe obvious reason that the damages due 
them were paid into court, no exceptions 
were filed to the report of tbe commissioners 
assessing same, and no appeal was taken 
from either the final judgment in the county 
conrt or from the assessment of damages 
aforesaid. 

[4] As said by tbls court in Eowell t. 
Jackson County, 262 Ma loc. dt 412, 171 S. 
W. 844: 

"It is only errors that affect appellant or 
plaintiff in error that are reversible, and courts 
lend an attentive ear to none other. City of St. 
Louis v. Lanigan, 97 Mo. loc. cit. 180 [10 S. W. 
475] ; R. S. 1909, S 2082; Kansas Cityv. Woe- 
rishoeffer, 249 Mo. loc. cit. 24 [155 S. W. 779]." 

[S] In Seafleld ▼. Bohne, 169 Mo. loc. dt 
651-652, 69 S. W. 1055, Judge Valllant, speak- 
ing for this Division, said: 

"But, when private property rights are threat- 
ened, it is the duty of the owner to avail him- 
self of the process of law for his protection, and, 
if he stands by and allows a court in the exerrisc 
of its rightful jurisdiction to decide questions of 
law or of fact contrary to the correct interpre- 
tation of the one or to the weight of the evi- 
dence as to the other, and neglects tbe means at 
hand to correct the error, he cannot afterwards 
treat tbe whole proceedings of the court as a 
nullity." 

Judge Valllant, on pages 552 and 553 of ICO 
Ma, page 1035 of 60 S. W., concludes the 
above opinion as follows: 

"Our conclusion is that, if the county court 
made any mistake in its judgment touching any 
of the matters in issue in the proceeding to open 
the rood in question, it was an error of judg- 
ment which could have been reviewed and cor- 
rected in the manner provided by law for relief 
Sainst such errors, but that it did not render 
• judgment void as one the court bad no ju- 



risdietion to reader, awr subject It to collateral 

attack." 

The above was an injunction snlt bronglit 
against the county court of Dade coonty. 
Ma, and a road overseer. The prlndples of 
law announced therein are equally as ap- 
plicable to the case at bar. These plaintiffs 
made no objections^ to any of tbe proceed- 
ings before tbe county court Tbey filed no 
exceptions to the report of commissioners, 
and made no effort to appeal the case to tbe 
drcuit court, where it could have been tried 
de novo as provided In section 10440, It, S. 
1909. 

Tbe above contention of appellants Ls with- 
out merit, and is accordingly overruled. 

[6] IV. It la further insisted by appellants 
that: 

"The statute requires that the commissioners 
appointed to assess damages shall be resident 
freeholders of the county, disinterested, and not 
of kin to the parties in mterest. This require- 
ment must also be shown by the record itself. 
No presumption will be indulged that tbe com- 
missioners possess tbe necessary qualification," 
etc. 

Regardless of the merits of such contention 
in a proper case, these plaintiffs are in no 
condition to complain of alleged error of the 
county conrt in respect to above matter. The 
quotation from Howell v. Jackson County, 
262 Mo. loc cit 412, 171 S. W. 342, set out 
In the preceding proposition, applies with 
equal force to above contention. 

It Is not asserted that tbe commissioners 
failed to allow plaintiffs adequate damages, 
nor that any objection was raised before 
ttie county conrt as to their competency to 
act Appellants were in court They had 
the legal right to object to said commission- 
ers, if any valid reason existed for so doing. 
If the damages were Inadequate, they could 
have filed exceptions to the report of com- 
missioners and called for a new assessment 
of damages. They acquiesced in the assess- 
ment made, and should not be heard in this 
collateral proceeding to call in question the 
competency of said commissioners to act, and 
especially so In a court of equity. This con- 
tention is likewise ruled against appellants. 

V. It is also contended by appellants that 
"section 10438 requires tbe commtssioners 
appointed to assess damages to notify res- 
ident owners of tbe time and place of their 
meeting," eta, and that tbe proceedings be- 
fore tbe county conrt are void, because tbe 
commissioners failed to comply with the law. 

Section 10438, B. S. 1909, reads as fol- 
lows : 

" * * * Tbe said commissioners, after hav- 
ing been duly sworn to faithfully perform their 
duties, shall verbally notify the resident owner 
or owners of such lands, if tliey can be found on 
their premises when proceeding to the discharge 
of the duties of their business, and proceed to 
view the premises and assess the damages." etc. 

The report of commissioners, among other 
things, contains the following redtatlon: 

"We, the undersigned, • • • did, on the t 
4th day of August, 1911, proceed to the premises jl p* 
described in said petition, having first notitied \*^^ 



Mo.) 



LEDBBTTER r. FHIXJCJPS 



■n the pmrtiea interMted of car inteaded meet- 
iog, and the purpose thereof, and did then and 
there, hear all the testimony offered tn relation 
to the damages sustained by the laying oat of 
taid road, and do assess the damafes thereof to 
each particular landowner, as followa, to wit." 

Then follow the names, amounts, etc. 
This report was sworn to by tbe commission- 
ers on August 4, 1911, and filed wUb the 
county court 

It appears from tbe record tbat appellants 
knevr commisslonecs had been appointed to 
assess tbelr damages. They were already In 
court, and. If the damages assessed were In- 
ndequate, or If tbe commissioners had fail- 
ed to notify them as to the time and place 
for hearing evidence npon this subject, they 
should have promptly moved In the county 
court to have the report of commissioners 
set aside, and asked for a new assessment 
of damages, if they claimed injustice had 
l«en done thenu They, however, stood by 
and made no complaint to the county court, 
In respect to this matter, and should not now 
be heard in this collateral proceeding before 
a cijurt of chancery to complain of alleged 
failure of the commissioners to do their duty, 
when the sworn report of the latter .was on 
file showing a compliance with the law. 

The above contention is likewise overruled. 

VI. It Is claimed that the proceedings be- 
fore the county court should have shown 
that the parties could not agree upon the 
amount of damages which appellants had 
rjsliiined. As heretofore shown, the peti- 
tion for Injunction alleges that appellants 
"each refuse to give the right of way for 
said road." The county engineer In his re- 
["jrt stated that plaintiffs refused to give the 
ri^ht of way, etc. In view of the foregoing, 
It then became the duty of the county court 
to appoint commissioners to assess the dam- 
a?es, which was done. If any Irresularlt.v 
tiad existed In respect to this matter, the 
attention of the county court should have 
t«en called thereto. As previously stated, 
»urts of equity do not encourage parties to 
lie In ambush, seemingly acquiesce in pro- 
sidings of public importance, and then un- 
lertake collaterally to accomplish those things 
»hlch they could have brought forward at an 
>pportune time before the court having orig- 
inal Jurisdiction to pass upon audi ques- 
ions. This contention is likewise dlsal- 
owed. 

[7] VII. Finally, complaint Is made that 
:be presiding Judge of the county court mls- 
ed appellants by reason of a letter which 
X Is claimed he wrote to A. J. Tabor In re- 
^rd to his opinion as to certain phases of 
lie road. This letter was lost, and the par- 
ies do not agree as to Its exact languaga 
Ihe county court consists of three Judges, is 
k court of record, and must speak by Its 
record. A personal letter written by ohe 
sember of the court to an individual would 
lot be binding upon said court, regardless 
it the iiersonal yiews expressed therein. 



County of Johnson t. Wood, 84 Mo. loc. dt 
516-517; Maupin v. Franklin, 67 Mo. loc. dt 
329 ; Reppy v. Jefferson County, 47 Ma loc. 
dt 69. 

[8] This alleged letter, according to the tes- 
timony of A. J. Tabor, was received by him 
In January, 1910. Appellants knew, however, 
that commissioners were appointed In May, 
1911, to assess their damages, and yet It does 
not appear from the record that they ev6r 
made bay attempt before the county court to 
file a remonstrance, or to be heard upon any 
other question relating to the establishment 
of said road. 

We ore of the opinion that the above con- 
tention Is devoid of merit, and should b« 
disallowed. 

VIII. We have doubtless prolonged this 
discussion at greater length than was nec- 
essary, but, as the law relating to the estab- 
lishment of new roads, etc., is of state-wide 
importance, we have deemed It expedient to 
meet the questions presented and rule there- 
on, In order that the views of this court. In 
respect to such matters, may be known. Hav- 
ing given full consideration to all the ques- 
tions presented by the record, we are of the 
opinion that the judgment of the trial court 
was for the right parties. 

It appearing from the transcript on flle 
herein that plaintiffs were allowed to de- 
posit $100 In the trial court for stay of ex- 
ecution while the case was pending In tbe 
appellate Court, we hereby affirm the judg- 
ment and remand tbe cause. 

BROWN, C, concurs In result 

PER CURIAM. The foregoing opinion ot 
RAILEY, C, Is adopted as the opinion ot 
the court All concur; BLAIR and BOND, 
J J., In result 



LBDBBTTER et aL v. PHII/IilPS et bL 
(No. 17961.) 

(Supreme Court of Missouri, Division No. 1. 
Jnne 2. 1916.) 

1. Appeal and Ebeob ®=9l010(l)— Scopb or 
Review— Actions at Law. 

On appeal from the judgment in a law ac- 
tion, if there is an^ substantial testimoi^y in 
the record to sustam the judgment, it is the 
duty of the court to affirm it. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. |{ 3979-3881 ; Dec. Dig. «8=3» 
1010(1).] 

2. Appeal and Ekbob «=3994(3)— QmanoHS 

FOB Ck)OBT— CbeDIBILITT OF WITNESSES. 

In a cause tried to the court which has the 
witnessea before it, the court la the sole judge 
of their credibility. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. {| 3904-^905^; Dec. Dig. 
©=994(3).] 

3. Quieting Title «=»44(3)— Evidencb— Su»- 
ficienct. 

Evidence held to sustain the judgment of tbe 
trial court in quieting title to land i&' contro- 



4=3For otlier caaas *•• aam* topic aod KEY-NUUBIJK Id all Ke]r-Numb«r*d Digests and IndaxM 



Diqiz! 



^H^^v Google 



10 



187 SOUTEWBaXOBN KE1P0RTE& 



(Mo. 



Tersy. in defendanta, #ho claimed under alleged 
conveyance from plalntiCTB original grantor. 

[Ed. Note.— For other caaei, see Quieting 
Title, Cent Dig. § 91; Dec. Dig. «=»44(»).] 

Appeal from Circuit Court, Howell Coun- 
ty ; W. N. Bvans, Judge. 

Action by P. A. Ledbetter and husband 
against A. W. Phillips and others. Judgment 
for defendants, and plaintiffs appeaL Af- 
firmed. 

On January 80, 1912, P. A. Ledbetter, the 
only child and heir at law of Henry Good- 
man, deceased, and J. M. Ledbetter, her hus- 
band, commenced in the circuit court of 
Howell county aforesaid an action to quiet 
title under section 2535, R. S. 1909, to the 
south half of the northeast quarter and 
north half of the southeast quarter of sec- 
tion 19, township 26 north, range 7 west, 
containing 160 acres, and claiming to be the 
owners thereof. Defendants A. W. and E. C. 
Phillips filed a separate answer, claiming 
to be the owners of the north half of the 
southeast quarter of said section 19; and 
defendants S. S. De Board and Cora De 
Board, husband and wife, filed a separate an- 
swer, claiming to be the owners of the south 
half of the northeast quarter of said section 
19. Except as to the land described, the 
above separate answers were duplicates of 
each other. 

Henry Goodman, father of P. A. L«dbetter, 
homesteaded the 160 acres of land above 
described, and made his final proofs required 
of homestead claimants on January 2, 1877. 
The patent, however, to said land, was not 
issued to Henry Goodman until February 16, 
1884, although homestead final certificate 
1568 was issued to him March 22, 1877. 
Henry Goodman died April 22, 1878. 

All of the defendants appeared to above 
action, except Christopher C. McGuire, Grace 
D. McOuirek and T. W. Bcower, who were 
duly served by publlcaticMi, but made de- 
fault therein. The case was submitted to 
the court without a Jury. Upon a full con- 
sideration of the evidence and argument of 
counsel the trial court found that plaintiffs 
had no right, title, nor interest whatever, 
either legal or equitable, in any of the 160 
acres of land in controversy and heretofore 
described. The court further found that de- 
fendants A. W. PhUUps and B. C. PhllUps 
are owners in fee of said north half of the 
southeast quarter of secticm 19 aforesaid, 
and that defendants S. S. De Board and 
Cora De Board are the owners of said south 
half of the northeast quarter of section 19 
aforesaid. 

Judgment was entered in due form in ac- 
cordance with above findings. The case was 
submitted to the court without instructions. 
The evidence disclosed by the record, as 
far as necessary, will be considered In the 
opinion to follow. 



R. S. Hogan and Green ft Oreen, all of 
West Plains, for appellants. J. N. Bui^ 
roughs and M. E. Morrow, twtb of West 
Plains, for respondents. 

RAILEIX, a (after stating the facts as 
above). [1, 2] I. The case was tried wlthoat 
the intervention of a Jury and without in- 
structions. On the facts disclosed by the 
record this is an action at law. If, therefore, 
there is any substantial testimony in the rec- 
ord sustaining the Judgment of the trial 
court, it t>ecomes oar plain duty to affirm 
the Judgment. Buford v. Moore, 177 S. W. 
loc. dt. 872; Chilton v. Nickey, 261 Mo. 232, 
169 S. W. 978; Morrison v. Bomer, 195 Mo. 
585, 94 S. W. 524; Bartlett v. Kauder, 97 
Mo. loc. dt 359, 11 S. W. 67; Schad v. Sharp, 
95 Mo. loc. dt 579, 8 S. W. 549; Hamilton v. 
Boggess, 63 Mo. loc dt 251, 252. The trial 
court had before it the witnesses, and was 
the sole Judge of their credibility. 

[S] It is admitted that Henry Goodman is 
the common source of title, and that be died 
on April 22, 1878. 

J. M. Garrett testified, that in April, 1884, 
he married tbe widow of Richard Goodman ; 
that she had in iter possession a deed from 
Henry Goodman to his brother, Richard 
Goodman, which conveyed the land in con- 
troversy; that said deed remained Inhispos- 
se.sslon from 1884 until 1902, and was lost 
without being recorded. 

Bud Jackson testified that he knew Henry 
Goodman in his lifetime, that his wife was 
the sister of Henry and Richard Goodman; 
that about 1878 he saw Henry Goodman In 
Arkansas, and that Henry told him he bad 
sold the above land to Richard Goodman for 
two horses and a wagon. Witness said be 
knew the team of horses which belonged to 
Richard, and that Henry Goodman had them 
with him, and also the wagon, when the 
above conversation occurred. Richard was 
living on the land at tbe above date, and 
told witness that he had bought Henry out 
Witness never knew of Henry daiming title 
to the land afterwards, but Richard lived 
on the place and claimed title to the land. 

M. Ken^iga on cross-examination testified 
at the instance of plaintiffs that Richard 
Goodman, who was living on tbe laud in 
question, told him that he (Richard) bad 
traded with his brother for the land. The ti- 
tle of Richard Goodman to above land pass- 
ed by mesne conveyance to defendants Phil- 
lips and De Boards, as found by the trial 
court 

There was no substantial contradiction of 
any of the foregoing testimony, rdating to 
the title of Richard Goodman, acquired from 
his' brother, Henry Goodman. The finding of 
the court was fully Justified by the above tes- 
timony. Glvens T. Burton, 183 S. W. loc. dt. 
621, 623. 

II. The finding and Judgment of the trial 
court is abundantly sustained by dear and 



^le 



Ma) 



WOODS ▼. ST. liOOIS <fc S^ V. B. CO. 



11 



sDbstantial evidence In the record. No errors 
were committed daring tlie progress of the 
trial below. 

Tbe lodgment was fbr the right parties, 
and Is accordingly affirmed. 

BaOWK, a, concars. 

PER CURIAM. The foregoing opinion of 
RAILBT, C, is adopted as the opinion of the 
conit All concur. 



WOODS T. ST. LOUIS & S. F. R. CO. 

(No. 17674.) 

(Sapreme Conrt of Missouri, DlTislon No. 1. 

June 2, igi&) 

1. Appkai. and Ebbob «=3>1061(S) — Habvixss 
£uoB— Gboukd of Nonsuit. 

Plaintiff not having been entitled to go to 
the jai7 either on the issues of negligence or 
coQtnbutory negligence, any error in nonsuiting 
him on the ground of his not producing suffi- 
cient evidence to overcome a release wiU not 
work a reversaL 

[Gd. Note. — For other cases, see Appeal and 
Error. Cent Dig. | 4210; Dec. iMg. «s» 
10ei(3).] 

2. SfAsm AND Sebtant $=>139 — Injubt — 
Neguoencb— Pbozhcate Cause. 

Even if failure of engineer to give signals 
were negligence. It would not avaU a section 
man on a hand car who, by seeing the train, had 
timely notice of its approach. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent. Dig. {{ 275, 282, 289, 296 ; Dec. 
Dig. «=3l39.] 

3. Haoteb and Sbbvant «=>155(3)— Radlboad 
Section Mbn— Wabnino or Tbainb. 

It is not the dnty of a railroad company to 
notify section men that any certain trains are 
eziMcted to pass over the road, but it is their 
duty to be on the lookout and keep out of the 
way. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent Dig. | SIO; Dec. Dig. «=9 
156(3).] 

4. Apfkai, and Sbbob «s>588(l) — Counheb 
Abstract. 

Respondent's counter abstract not being con- 
troverted, must be taken as true. 

(Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. Sj 2586, 2587, ^90-2694, 
2604; Dec. Dig. «=;>586(1).] 

5^ IlAnxB AND Skbtant «s»240(l)— Injubt— 

Oonibsbtttobt Nkquqknck. 
A railroad section man injured by the hand 
car on which he bad t>een riding being thrown by 
a train against him was guilty of contributory 
negligence in not leaving it and going to a ptoce 
of safety while he had time, and in going where 
the Iiand car would be thrown, instead of in tbe 
opposite direction. 

[Ed. Note.— For other cases, see Master and 
Servant Cent Dig. | 751; Dec Dig. «=> 
240a).] 

Appeal from Circuit Court, Laclede Coun- 
ty; u B. Woodslde, Judge; 

Action by William Woods against the St 
lionls & San Frandsco Railroad Company. 
From an adverse Judgment, plalntlfC appeals. 
Afllrmed. . 

On June 21, 1910, plaintiff was a section 
man on defendant's railroad, and was under 



the direction of John Doss, the foreman of 
the section gang. Doe Stephens and Wm. 
Brown were the other two section m«i who 
composed said gang. About 7 o'clock in the 
morning of above date, John Dosa and the 
three section men above named, left Stout- 
land, Mo., on a hand car, and traveled In 
a westerly or southwesterly direction until 
they came to a deep cut and curve In the 
road. The four men were located on the 
hand car as follows: Doss was on the left 
aide between the levers; plaintiff was on the 
left side, back of Doss ; Stephens was on the 
right side; and Brown was behind him. 
The crew were all facing west, the direction 
the hand car was traveling. They stopped 
three or four times before reaching the 
scene of accident to listen for approaching 
trains. The place where the accident oc- 
curred was a sharp curve around the side of 
a hill. Tbe curve is through a cut about 25 
feet deep, and there were trees and brush on 
the top of the cut outside the right of way. 
The train was going east and the hand car 
west, when the latter was struck. 

Plaintiff In bis direct examination testi- 
fied: 

"The train was not more than the distance be- 
tween two telegraph poles from me at tbe time 
I tried to push the hand car off the track." 

On cross-examination plaintiff testified as 
follows: 

"When I first saw the train It was about two 
telegraph poles and a half from me." 

Plaintiff proved that there were 30 tele- 
graph poles to the mile. 

John Does testified as follows: 

"When we first saw the train it was about 
420 feet away. At that time the hand car was 
in the act of stopping." 

The hand car was stopped. Doss and 
Stephens, who were In front, grabbed the 
handhold and swung the front end of hand 
car around to the north. Doss then hallooed 
to the boys to get out of the way. He did 
not give plaintiff any order in reference to 
moving the hand car. Plaintiff testified 
upon this subject as follows: 

"When Doss said, 'Look out,' and that was all 
that was said, tliey jerked the front end of the 
car and tbrowed it around, and I thought the 
next thing for me to do was to throw the hind 
end off. That is the general rale if ^on have 
time to jerk it off before the train hits it. I 
then stepped down in the center of the track 
and reached down to push the car over the rail. 
I had hold of the hand car, and did not hear 
any one say anything at that time. • * • 
The train was not more than the distance be- 
tween two telegraph poles from me at the time 
I tried to push the hand car off the track." 

Counting 30 telegraph poles to the mile. It 
makes the distance between such poles 170 
feet If the train was 2 telegraph poles 
away. It would make the distance 352 feet, 
but, If It was 2% telegraph poles away, It 
would make the distance 440 feet 

There is nothing in the record to Indicate 
whether the approaching train was a 



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187 SOCTHWI&STBRN KBPORTBa 



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ger, freigbt, or mixsd train, nor does the rec- 
ord show the rate of qieed It was miming be- 
fore the accident The foreman and section 
men concluded the hand car could not safe- 
ly be removed, and left the trade. The fore- 
man, Stephens, and Brown, when leaving the 
track, went towards the on-coming train, so 
that the hand car would not strike them 
when knocked from the track. The plaintiff, 
however, went in the opposite direction from 
the others, and when the locomotive struck 
the hand car it was knocked against the 
plaintiff and caused the injuries complained 
of. As shown by respondent's supplemental 
abstract, plaintiff testified in reference to 
this matter as follows: 

"Q. You knew if the engine liit the car it 
would knock it in the direction it was going? 
A. It was bound to. Q. Had you ever seen a 
hand car hit before by a trai>? A. Yea, sir." 

Plaintiff was sent to the hospital, and re- 
mained there over three months. Defend- 
ant's claim agent, it Is alleged, paid plaintiff 
$180 on August 17, 1910, in full satisfaction 
and release of his cause of action, as shown 
by the release' set out in the atetract, but 
plaintiff denies that he received any amonnt 
in excess of $80, and claims that he under- 
stood he was simply being allowed for his 
time, eta 

On February 6, 1912, defendant filed its 
answer in this caiuie, pleading the general 
issue, contributory negligence on the part of 
plaintiff, and likewise pleaded the above re- 
lease in bar of plaintiff's right of recovery. 
The case was called for trial before a jury 
on August 7, 1912. On said last-named date 
plaintiff's reply was amended so as to allege 
a tender to defendant of said $80. The trial 
court directed a verdict for defendant on the 
ground that plaintiff had not produced suffi- 
cient evidence to overturn the settlement 
which he had made with defendant The 
Jury returned a verdict tor defendant and 
Judgment was accordingly entered thereon. 
Plaintiff filed a motion for new trial, which 
was overruled, and the case appealed to this 
court 

A. B. Lamb» of Coffeyvillev Ean., and Met- 
calf, Brady & Sherman, of Kansas City, 
for appellant W. F. Evans, of St Louis, and 
Mann, Todd & Mann, of Springfield, for re- 
spondent 

RAJIjET, 0. (after stating the facts as 
above). [1] I. Although the trial court non- 
suited plaintiff on the ground that he had 
failed to produce sufficient evidence at the 
trial to overcome the release pleaded and of- 
fered In evidence by defendant yet, if he 
failed to introduce any substantial evidence 
tending to convict defendant of any of the acts 
of negligence lodged against it in his com- 
plaint or if it should appear from the undis- 
puted facts in the case that plaintiff was guil- 
ty of negligence contributing to his own injury 
at the time and place of accident, then it would 
be oar dutjr to afDrm the Judgment below, re- 



gardless of the action of the court la non- 
suiting plaintiff for alleged failure to pro- 
duce sufficient evidence to overturn the set- 
tlement made with defendant's agent Boe- 
sel V. Wells Fargo & Co., 260 Mo. loc cit 
463, 478, 479, 169 S. W. 110; Hurck v. Rail- 
way Ca, 252 Mo. loa cit 61, 62, 158 S. W. 
581; Trainer v. Mining Co., 243 Mo. 350. 
148 S. W. 70, Ann. Cas. 1913C, 919; Quinn 
V. Met Street Ry. Co., 218 Mo. 545, 118 S. 
W. 46; Warner v. St L. & M. R. Ry. Co., 
178 Mo. loc. cit 134. 77 8. W. 67; Moore ▼. 
Undell Ry. Co., 176 Mo. loc. dt 544, 545, 
75 S. W. 672; King v. King, 165 Mo. loc. cit 
425, 56 S. W. 534; BarOey v. Street Rail- 
way Co., 148 Mo. loc. dt. 142, 49 8. W. 840. 

Keeping in mind the above principles of 
law, let as turn to the record and ascertain 
(1) whether plaintiff was entitled to go to 
the Jury on any of the alleged grounds of 
negligence charged against defendant In the 
complaint; (2) and whether he was entitled 
to go to the Jury on account of his alleged 
contributory negligence at the time and 
place of accident 

[2] II. The first charge of negligence lodg- 
ed against respondent in the complaint reads 
as follows : 

"That the engineer and fireman in charge of 
defendant's extra freight train No. 1251, whose 
names are to this plaintiS unknown, failed and 
neglected to blow the whistle or ring the bell of 
the engine of said train or give any warning of 
any kind of its approach as it was about to 
speed around the curve where the plaintiff was 
injured." 

The first part of the above complaint al- 
leges that the engineer and fireman in 
diarge of defendant's extra freight train 
No. 1251, neglected to blow the whistle or 
ring the bell of said train, (a) There is not 
a word of testimony in the record showing 
that the train which struck the hand car 
was a freight train, (b) There is not a syl- 
lable of testimony in the case tending to 
show that the engineer and fireman of the 
train which collided with the hand car did 
not blow the whistle and sound the bell be- 
fore the collisi(xi occurred, (c) The tesU* 
mony falls to show that the engineer and fire- 
man could see plaintiff or his crew until the 
locomotive emerged from the cut Even If it 
had been shown that the whistle was not 
blown and the bell was not rung, it would not 
have been available to plaintiff as a cause of 
action, because the engineer and fireman, un- 
der the circumstances of this case, were not 
required by law to sound the whistle or ring 
the bell as a warning to plaintiff. Gabal v. 
RaUroad, 261 Mo. loc. cit 270, 271, 158 8. 
W. 12; RashaU r. Railroad, 249 Ma 609. 
156 8. W. 426; Van Dyke v. Railroad, 230 
Mo. 259, 130 8. W. 1; Degonla v. Railroad, 
224 Mo. 564, 123 8. W. 807; Sissel v. Rail- 
road, 214 Mo. 530, 113 8. W. 1104, 16 Ann. 
Cas. 429; CahiU v. Railroad, 205 Mo. 393, 
103 8. W. 532; McGrath v. 8t Louis 
Transit Co, 197 Mo. 97, 94 8. W. 872,^ 
Clancy v%, St Louis XranMt GOh 102 Ma 



8 T 

L O 



Ho.) 



WOODS T. ST. IX>UIS A B. F. R. 00. 



18 



615, 91 S. W. 600; Evanig T. Wabash Ry. 
Co., 178 MOw loc. dt 6ir, TT 8. W. 515 ; Ring 
T. Mo. Pat Ry. Co., 112 Mo. 220, 20 S. W. 
438; Hits ▼. Railroad, 152 Mo. App. 687, 
133 S. W. 397; Wllkenm t. Railroad, 140 
Ma App. 306, 124 S. W. 648; Aerkfete v. 
Humphreys, 146 V. S. loc dt 419, 12 Snp. 
Ct 835, 36 li. Ed. 758 ; Rlcdo v. New York, 
M. H. ft H. Railroad, 189 Mass. 368, 76 N. 
S. 704; Texas & P. Ry. Co. t. Myers, 68 
Tex. dr. App. 408, 126 S. W. 49; Myers ▼. 
1^X83 & P. Ry. Co. (Tex. OLv. App.) 134 S. 
W. 814; Candnnatl, N. O. ft T. P. Ry. Co. ▼. 
Swatm'B Adm'x, 160 Ky. 458, 169 S. W. 887 
L. R. A. 19150, 27. (d) Even if the whistle 
had been sounded and the bell mng before 
the train came into the cnt, there is no eTi- 
dence In the record tending to show that ei- 
ther conld have been heard by plaintUt or 
die sectimi crew. Nor does the evidence 
cliow tliat either signal conld have been 
heard by plaintiff while the train was in the 
eat (e) Plaintiff testified in chief that he 
Hiw the train when it was 862 feet away, 
and on cros»«zaniination said he saw it 440 
feet away. There la no evidence tending to 
diow the train was running at a rapid rate 
of speed, bat, even if it had been, plaintiff 
liad ample time to liave moved to a place of 
safety. Having seen the train after the 
hud car had stopped, while it was from 352 
to 440 feet away, the failure to sound the 
whistle or ring the bell, even if neither stg- 
aal had been given, would be unavailing to 
plaintiff as a ground of negligence. The 
foreman says the train was 420 feet away 
when he flrst saw it, and plaintiff places it 
«t above distance. Where a whistle is re- 
ared to be sounded, or a bell rang, it is for 
file purpose of imparting notice of the ap- 
proedi of the train. Hutchinson v. Missouri 
Pacific Ry. Co., 161 Mo. 246, 61 S. W. 636, 
862, 84 Am. Bt Rep. 710; Murray v. St. 
Louis Transit Co., 176 Mo. loc. clt 180, 75 
8. W. 611 ; Hutchinson v. Mo. Pac. Ry. Co., 
196 Ma 646, 93 S. W, 031, 4 L. R. A. (N. S.) 
729, 113 Am. St. R^. 693, 6 Ann. Ca& 699 ; 
Sissel V. Railroad, 214 Mo. loc. cit. 529, 530, 
113 S. W. 1104, 16 Ann. Cas. 429; Craine 
V. Metropolitan St Ry. Co., 246 Mo. loc. clt. 
401, 152 S. VSI. 24; Illinois Cent R. Co. v. 
WUUa' Adm'r, 123 Ky. 636, 97 S. W. 21; 
Baltimore ft O. S. W. R. Co. v. Abegglen, 
41 Ind. App. 603, 84 N. B. 566; Pakalln- 
sky V. N. T. Cent ft Hud. R. R. R. Co., 
82 N. T. 424. Plaintiff had timely notice of 
the ai^roach of the train to have moved to 
a place of safety if he had not voluntarily 
Rmalned at the hand car and then moved in 
tbe opposite direction from that which he 
Aould have g«»ie. There is no evidence in 
tbe record tending to show that plaintiff did 
not have ample time, after learning of the 
tppToad) of tlie train, to have moved to a 
place ot safety. The record utterly fails to 
show any testlmcray relating to the bell or 
whistle of ttte oncoming locomotive, (f) It is 
^targed Oat defendant had no regular train 



schedule to enter Stoutland, Mo., from th6 
west at thlB hour. There was no testimony 
offered on this subject, and It is not shown 
to have had any connection with the case, 
even if true. 
[S) HI. It is averred as negligence: 
"That the agent of defendant at Stoutland, 
Mo., failed to warn John Doss, sectiota foreman, 
this plaintiff, or any member of the section crew 
of the approach of aaid extra freight train." 

In his direct examination plaintiff testi- 
fied as follows: 

"When we started to work we came back to 
the depot and asked if there were any extra 
trains out, and the agent said 'No.' • • • Q. 
Where were yon when this was asked? A. 1' 
was standing on the hand car. Q. Where was 
the hnnd car? A. In front of the depot Q. 
Who did the talking? A. Mr. Doss. Q. Did 
you hear a conversation there between Mr. Doss 
and the agent at the depot? A. Well, I under- 
stood they said there was not nothing out ; that 
there wasn't no extras ont. Q. Did you hear a 
conversation there? A. No, sir." 

Plaintiff admitted that he did not hear the 
alleged conversation between Boss and tbe 
agent He did not testify that Doss told him 
any such thing. On the contrary, plaintiff 
testified as follows: 

"Doss said, 'We will go ahead' of a fill that 
was there, and said 'Maybe we can get over i\ 
before It catches us If there is anything out' ' 

This indicates that neither Doss nor any 
of his crew were relying on the fact that a 
train was not expected to pass over the road. 

No court would permit a verdict to stand 
in favor of plaintiff based upon such alleged 
negligence of the agent There is nothing In 
the record to indicate where the train was 
when plaintiff left the station at Stoutland, 
or that the agent knew where it was then. 
But, even if the agent had known this train 
was coming over the road, and had failed to 
notify Doss of that fact it would have been 
Immaterial, because it was not the duty of 
the defendant or its agents to notify section 
men along the' road that any certain trains 
were expected to pass over same. It was 
the duty of the section men, as declared in 
the authorities cited under proposition II, 
supra, to be on the lookout for trains, and 
to keep ont of the way of same. Again, it 
was immaterial, even if the agent did fall 
to notify Doss that the train mentioned in 
evidence would pass over the load; for it 
clearly apiiears that both plaintiff and Doss 
knew of its approach when more than 350 
feet away, and in ample time for plaintiff to 
have moved to a place of safety, had he ex- 
ercised ordinary care, as the other section 
men did under the drcumstances. 

IV. It is farther charged as negligence in 
the petition: 

"That the engineer and fironan on said extra 
train No. 1261 knew that the section men on the 
defendant's railway started to work upon the 
defendant's hand cars at the hour of 7 o'clock 
a. m., and that the said engineer and fireman 
knew that said section men were likely to b« 
upon said defendant's railway track going to 
work between the hours of 7 and 8 o'clock, a. 
m. ; that it was one of the rules of the defend- 
ant's railway company, and had been tor a lon^/ 



Google 



14 



Igr SOUTH WESTSBN B£pOBXB& 



(Mo. 



'• I 



tine prior to the date of the injuries complained 
of cnstomary, for every train to blow its whistle 
when approaching an extreme curve." 

There la not a adntllla of evidence In the 
record In regard to above allegatibn. No wit- 
ness testlfled as to any snch rule of the com- 
pany, nor in respect to any such duty de- 
volving on the engineer and fireman of a 
train under the circumstances of this case. 
As heretofore suggested, the foreman and 
his crevr knew of the approach of the train 
in time to have moved to a place of safety. 

[4] V. PlaintUTs last charge of negligence 
reads as follows: 

"That John Doss, the section foreman of the 
defendant as aforesaid, negligently and care- 
lessly ordered and lead this plaintiff to assist in 
attempting to remove said hand car from the 
defendant's traclc when the engine of said ex- 
tra freight train was only about 200 feet away 
and running at a high and dangerous rate of 
speed, and failed and neglected to order this 
plaintiff to leave said hand car in time for 
this plaintiff to escape being struck by said hand 
car when it was thrown off of defendant's track 
by said engine." 

(a) There Is no evidence In the record 
tending to show that Doss ordered plaintiff 
to assist in removing the hand car. Plain- 
tiff introduced as his witnesses Doss and 
Stephens. It appears from resirandent's 
counter abstract, which must be taken as 
true, because it is not controverted, that 
Stephens, on cross-examination, testified: 

"I heard some one holler two or three times — 
I took it to be the foreman — to get to a place of 
safety. As we came around the curve and saw 
the train the hand car stopped and we jumped 
off. Doss and I grabbed hold of the handhold 
of the front end and swung around to the north, 
the inside of the curve, the low side of the track. 
We did not do that on anybody's order. I did 
not hear the foreman give any orders. We men 
just knew we were trying to get the hand car 
off." 

Doss testified that when be first saw the 
train it was about 420 feet away. After he 
and Stephens moved the end of car around 
to the north he saw they could not get it 
off, and he said to the boys, "Get out of the 
way and let him have it" The train at that 
time was at>out 200 feet away. He further 
testified: 

"The other men stepped back on the bank, 
and I hollowed at Woods the Uiird time. When 
he started to leave the track he went in the same 
direction the train was going. We just stepped 
in the direction the train was coming from and 
to the side of the track. I never made over two 
steps from the car. I could have gone six or 
eight, but two steps cleared me, and I knew 
when the engine hit it it would knock it in the 
direction it was going." 

Plaintiff testified that Doss said, "Look 
out," and without any order from Doss he 
attempted to move the rear part of liand car. 
The train, he says, was then about the dis- 
tance between two telegraph poles from him, 
or 352 feet away. There is not the slightest 
intimation in pialntifTs testimony that Doss 
ordered blm to assist in removing the hand 
car. The evidence is undisputed that when 
be did leave the hand car. Instead of going 
toward the approaching tralD so that the 



hand car would not strike him, he went In 
the opposite direction, and was struck by the | 
hand car he had left on the track as it was ' 
Icnocked off by the train. ! 

(b) As heretofore shown, tber.e Is absolute- 
ly no testimony in the record which even | 
mentions the rate of speed at which the ' 
train was running. Nor is there any evi- i 
dence tending to show tbat it was traveling I 
at a rapid or dangerous rate of speed. Tbe , 
evidence is clear and undisputed tiiat plain- 
tiff was warned to look out for the train In 
ample time to have mbved to a place of ' 
safety if be had exercised ordinary core for 
his own protection. 

YI. Upon a carefal consideration of each 
of the charges of negligence preferred against 
defendant in tbe complaint we are compelled 
to hold upon the facts disclosed by the rec- 
ord that plaintiff, by his evidence, has sig- 
nally failed to make out a case against de- 
fendant upon either of the charges of negli- 
gence aforesaid. The trial court would there- 
fore have been clearly justified in sustaining 
defendant's demurrer, on the ground that the 
charges of negligence against defendant were 
not sustained by the proof. 

[S] VII. On the undisputed facts disposed 
by the record the plaintiff at time and place 
of accident failed to exercise ordinary care 
for his own protection, and was clearly guil- 
ty ot negligence In faUing to leave tbe hand 
car and move to a place of safety while he 
ttad time to do so, and was likewise guilty of 
negligence in going east by the side of tbe 
track, where the hand car could strike him, 
when knocked from the track by the train, 
when two or three steps in the opposite di- 
rection would have carried him to a place 
of safety. The trial court would likewise 
have been justified, upon the undisputed 
facta In the case, in directing a verdict for 
defendant upon plaintifTs contributory negli- 
gence. 

yill. In view of the conclusion heretofore 
reached, we deem it unnecessary to o<msider 
tbe action of tbe court in directing a verdict 
for defendant on the ground that plaintiff 
failed to produce sufficient evidence to over- 
turn the settlement pleaded in defendant's 
answer. 

Tbe judgment below was for the right 
party, and is accordingly afllrmed. 

PER CURIAM. The foregoing opinion of 
BAILEY, C, is adopted as the opinion of the 
court BLAIR and BUND, JJ., concur in re- 
sult GRAVES, P. J., concurs in opinion 
filed, as to all except a portion of para- 
graph 7 of opinion. WOODSON, J,, concurs 
in opinion of GRAVES, P. J. 

GRAVES, P. J. I concur in the result of 
the majority opinion and in all of tbe opin- 
ion, except part of the seventh paragraph 
therein. I agree tbat no negligence as plead- 
ed by plaintiff was shown against the de- 
fendant I agree that it was 



Eunsc cne ae- . 
contributorr^Q I p 



Mo.) 



JBEID ▼. ST. LOUIS * 3. F. K. CO. 



i& 



negligence for pialntlfl to have undertisken 
to remove the hand car In front of a rapidly 
approaching train bo close to him, but I do 
not agree that Us movement to the east 
ratber than to the west was such an act as 
should be declared contributory negligence 
as a matter of law. Under the stressed dr- 
cQfflstances, had the case turned upon this 
point, the question was one for the Jury. 
One placed suddenly In a position of peril 
is not called upon to use the same exact 
Judgment as would be used under different 
drcnmstances. This Is one of the common 
rules In measuring alleged acts of contribn- 
tory negligence. As a rule, where one acts 
In the face of Impending peril, the question 
of his negligrace is usually for the jury. So 
it would have been In this case. It is like- 
wise, for very similar reasons, a very close 
question whether or not we should say that 
plaintiff's attempt to remove the hand car 
was contributory negUgenca 

But it may be this last question Is ruled 
well enough, and I let tt go at that. 

WOODSON, J., concurs In these views. 



REED ▼. ST. LOUIS & S. T. R. CO. 
(No. 17326.) 

(Supreme Court of Missouri, Division No. 1. 
June 2, 1916.) 

1. Rkleabk «=>24KZ) — Attack fob Fraud — 
Xe.ndeb Back of Consioebation. 

It was incumbent upon an injured rBil|oad 
employ^, before attacking his release of liability 
to the company for fraud in its procurement, the 
company's representative having used neither 
guile nor force to prevent the servant from read- 
ing the release, to tender the road the $675 re- 
ceived for its execution. 

[Ed. Note.— For other cases, see Release, Cent. 
Dig. { 45; Dec. Dig. <9=>2i&).] 

2. CoMFBOiasK AtiD SesmxvxyT <S=s>6(3) — 
Settxjeicent of Claim fob Injuries. 

Where an injured railroad employ^, after 
negotiating with the company's representative, 
accepted ^575 in money as compensation for his 
injuries, there was a settlement of liis claim un- 
aided by bis written release. 

[Ed. Note.— For other cases, see Compromise 
nnd SJpttlement, Cent Dig. §g 39, 43; Deo. Dig. 
g=»6(3).] 

t. Re:i.eabe <S=»15— Failubb to Read. 

An injured railroad employ^ who signed a 
-elease of liability to the road could not set it 
wide because he did not read it, where it con- 
tained only the terms of bis parol agreement of 
ettlement with the representative of the road. 

[£d. Note.— For other cases, see Release, Cent. 
>ig. i 30; Dec Dig. «8=s>15.) 

L REI.EASK is=>24(2)— Tbndkb Back or CtoN- 
sioebation — Waiveb. 
Where counsel for an injured railroad em- 
>loy£ who had signed a release for $675 wrote 
be company's attorney, without inclosing any 
Doney. check, etc., that he tendered back the 
um paid the employ*, to which the company re- 
died that the injury was the result of the em- 
iloy^'s own negljigence, that he had been treated 
rith generosity on account of the seriousness of 
lIs injuries alone, and that no voluntary action 
rould be taken by the company, there was no 



waiver by it of tendSr fcack of the consideration ' 
for the release. 

(Ed. Note.— For other cases, see Release, Cent' 
Dig. § 45; Dec. Dig. «=>24(2).] 

5. Tbial «=»145— Issdi— WrrHDBAWAL. 

In an action for injuries by a railroad serv- 
ant who had signed a release, where the' petition 
alleged fraud in its procurement, and plaintiff's 
counsel stated the release had been procured 
by fraud, and the case was tried solely on such 
theory until on rebuttal defendant offered a 
witness who gave testimony relied on by plaintiff 
as tending to show mental incapacity to execute 
the release, it was defendant's right to have the 
issue of fraud specifically withdrawn from the 
jury. 

[Ed. Note.— For other cases, see Trial, Cent. 
Dig. SI 328, 341; Dec. Dig. <S=>145.] 

6. Tbiai. €=>194(9)— Instktjction. 

In an action for injuries against a railroad 
by an employ^ who executed a release, an in- 
struction that there was no evidence that the 
settlement was obtained by fraud or misrepresen- 
tation, simply withdrawing the issue of fr.iud 
made by the pleadings, presented by the opening 
statement of plaintiff's counsel, and adverted 
to in the evidence, was not erroneous as telling 
the jury the claim was fairly settled. 

[Ed. Note. — For other cases, see Trial, Cent. 
Dxg. a 453, 456, 463 ; Dec. Dig. <g=»194(9).] 

7. Appeal akd Ebbob «=>232(3) — Reserva- 
tion OF Obounds of Review— Objkctiow 
to Inbtbcction — Waivkb. 

In a railroad servant's action for injuries, 
where plaintiff's counsel stated that his objection 
to an instruction was the only one he had, he 
was precluded on appeal from making any oth- 
er, having waived all but the excepted one. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. § 1351; Dec Dig. «=>232(3); 
Trial, Cent Dig. § 681.] 

8. Appeal and Ebbob ^=»995 — Review — 
Weight of Evidence. 

The Supreme Court is not concerned with 
the weight of evidence on an appeal. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. | 3907; Dec. Dig. <S=»995.] 

Appeal from Circuit Court, Jackson Coun- 
ty; James E: Goodrich, Judge. 

Action by Milton Reid against the St. 
Louis & San IB^ancisco Railroad Company. 
There was verdict for defendant, which was 
set aside by the trial court, and defendant 
appeals. Order granting new trial reversed, 
and cause remanded, with directions to enter 
judgment on the verdict 

W. F. Evans, of St Louis, and Hale Houts 
and Cowherd, Ingraham, Durham & Morse, 
all of Kansas City, for appellant R. J. 
Holmden, of Kansas City, for respondent 

BLAIR, J, This action was begun In the 
Jackson circuit court to recover damages for 
Injuries respondent suffered in a collision 
between two engines In appellant's yards. 
There was a verdict for the railroad com- 
pany, which the trial court set aside on the 
ground an instruction given was erroneous, 
and the company appealed. 

In the view we take of the case it Is un- 
necessary to set out the circumstances re- 
sulting In respondent's Injury. The answer 
consisted: (1) Of a general denial of all al- 
legations of the petition ' except that It was 



^=»For other cases see saift'e topic ind KE7-NUI1BER in an Key-Numb«r«d PigesU and Indexes 



^|JJ7oHK<^OOgle 



w. 



187 SOUTHWBSTDRN BBPOBTBB 



OSi*. 



admitted appellant was a corporation; (2) 
a plea of contributory negligence; (3) a plea 
of assumption of risk; and (4) a count set- 
ting up a release and averring appellant com- 
promised and settled Ills claim. The reply 
denied £he second and third averments of the 
answer, and concluded as follows: 

"Plaintiff, further replying, states that the 
alleged release set forth in defendant's amended 
answer is without lawful consideration and void; 
that such release was obtained from plaintiff by 
misrepresentation, imposition, and deception 
practiced upon him by defendant's agents, serv- 
ants, and employes while he was in deep dis- 
tress and mental and bodily aflSiction and an- 
guish, brought about by the injury set forth in 
his first amended petition herein, and while 
plaintiff was unable, through such bodily and 
mental condition, to understand or comprehend 
the contents and terms of said release, and that 
plaintiff never assented to the terms thereof; 
that defendant company, through and by its said 
agents, with the purpose and design of defraud- 
ing plaintiff out of his right of action set forth 
in said amended petition, well knowing that 
plaintiff was incapable of understanding or com- 
prehending the nature and terms of said release, 
told plaintiff that bis injury was caused by, and 
the result of, an accident; that the defendant 
company was not responsible or liable therefor; 
that the money mentioned in said release was 
given and paid plaintiff as an act of charity and 
because he had been an employ^ of the company ; 
that the paper signed by him was a receipt to 
show the company where the money had been poid, 
and plaintiff, with full confidence in defendant's 
agents, employt^s, and servants, believing that the 
statemrtnts so made were true, and in his bodily 
and mental condition as herein stated, signed 
and executed said paper. 

"Plaintiff, further replying, denies that he is 
now or ever was compelled to make return of or 
tender back to defendant the money so given and 
paid under the circumstances mentioned, but 
states that he did make a tender of and offer to 
return said money to defendant prior to the insti- 
tution of this suit, and now herein again makes 
a tender of and offers to return to defendant 
company the money so paid and given this plain- 
tiff by defendant." 

. Appellant unsuccessfully demurred to the 
evidence, and the case went to the jury with 
the result stated. In support of Its position 
that the order granting the new trial should 
be reversed, with directions to reinstate the 
verdict and enter judgment thereon, appel- 
lant contends: (1) There was no substantial 
evidence tending to prove negligence on the 
part of appellant; (2) contributory negligence 
of respondent Is conclusively shown; (3) 
there was no evidence of fraud in the pro- 
curement of the release; (4) there was no 
tender made of the amount received by re- 
spondent In settlement ; (6) there was no evi- 
dence of mental Incapacity of respondent 
avoiding the release; and (6) that the 
cause was fairly tried In all respects. 

The facts necessary to an understanding 
of the questions we think decisive of the case 
will be stated in connection with the discus- 
sion of those questions. 

1. Appellant admits be signed the release 
pleaded In bar by respondent, and admits he 
received $675 at the time he did so. He 
himself is the only witness testifying in his 
behalf who claims to have been present dur- 
ing all the negotiations resulting In the exe- 



cution of the release. TestlBumy at otbem 
adds nothing of importance in this connec- 
tion. As to these negotiations he testified in 
considerable detail. He swore the company's 
first offer was $260; that be replied this was 
not enough for the injury he had received. 
There was some dlscuasion. The company's 
representative then said the company was not 
liable; that neither it nor reqwndent was 
responsible for the mischance; that it was 
one of those accidents which could not be 
helped. Respondent rejoined he thought the 
company ought to give him $2,000, and this 
counter suggestion was immediately refused 
consideration. This was the substance of the 
first conversation. On February X», 1906k 
nearly two months after respond^it had been 
discharged from the hospital, the represent- 
ative of the company again went to respcmd- 
ent's home. Respondent details the conversa- 
tion upon this occasion substantially as fol- 
lows, repetitions and inconsequential matter 
being omitted: 

"Q. What talk did you have at the time? A. 
Mr. Tjee talked all the morning about the compa- 
ny not being liable, and he said that was all really 
that the company would give. He said that the 
company was not liable for this accident; that it 
was one of those accidents that was brou!;ht 
about by the providence of God. He said that 
the fog>— it being so foggy that night that none 
of us could not see the engine, and that the 
company didn't think I was responsible for it, 
and they didn't think they were responsible for 
it ; and then he inquired into my financial con- 
ditions, what I was doing, and then he asked my 
wife what she was doing, anv work, and finally 
he employed her to go out to nis house and woiic 
So he talked on half a day, and finally he said 
thot was every bit that the company would give 
was $500. Q. In that talk you told him that you 
didn't see the engine standing on that switch 
was because it was so foggy? A. Because there 
was no lights on it. (Note. — It is admitted lights 
were never used on engines in this work.) Q. 
Because it was so foggy he said you were not 
responsible for not seeing it? A. Tes, sir. Q. 
That there was an accident in bis opinion, and 
be didn't think the company was liable? A. Yes, 
sir. Q. And they would not give you more than 
^500, and what did you say about that? A. He 
kept on talking. I wasn't saying anything; I 
was listening. Q. What did you say about a 
check or draft? A. Finally he lifted the $500 
up, and said the company had authorized him 
to give me that, that was all the company bad 
authorized, but he could raise it $175 more, he 
had that power himself, to raise it $175 more, 
and he said that he had their check, and that 
was all the company would give. Q. Yes. A. 
And he said the company wasn't liable; that 
there was no liability, and they were giving it as 
an act of charity. He started to write out a 
check for it, and I told him that I could not 
cash any check, so he went away and brought 
the money. Q. Why did you tell him that you 
could not casn any check? A. I don't know 
anybody in town that I could cash a check like 
that. I might have been put In jail for having 
the check. I told him that I could not cash a 
check, and wanted it In money. Q. He wrote 
the check out and had you to sign it, and told 
you he would get the money? A. Yes, sir. Q. 
He came bock, did he? A. Yes, sir. Q. What 
time did he go away? A. I don't know, Q. You 
say he came there at 10 o'clock in the nomiog. 
How long did he stay? A. He came about 10, 
and I should judge it was after 12 o'clock when 
he left. Q. What time did he get back? 
think he got back a little afte|,0 o'clock. 



when 

aiogle 



Uo.) 



JEHEID T.flT. LOUIS * S. P. R. OO, 



IT 



romig man was wltb him? A. T«8, air. Q. 
Who was with yon at the time? A. My wife. 
Q. He brought t'le money back with him? A. 
Yes, sir. Q. IXd you count it? A. No, air. 
Q. Did your wife count it? A. No, sir. Q. Ton 
tav him count it? A. Yes, sir. Q. Did he have 
a paper there for you to sirn? A. Yes, sir. Q. 
Did you talk this over with your wife when 
Mr. Lee came down there? A^ No, sir. Q. Did 
rou and she talk it over after he left? A. No. 
cir. Q. Did she hear the talk between yon and 
Lee? A. She heard a portion of it, and a por- 
tion the didn't. Q. When he came back with 
this young man, what did he say? A. He 
brought the money at that time and gave It to 
me. and brought two papers out of his book, and 
said these were naners.that the company re- 
qnired him to have in order to show where the 
money had been paid. Q. What did you say? 
A. I never said anything only to sign. Q. That 
is your signature? A. Yes, sir. Q. You said 
j-oii (can] read? A. Yes, sir. Q. Your eyes are 
good? A. Yes, sir. Q. Your wife reads and 
writes, too? A. Yes, sir. Q. That is her signa- 
ture; you saw her sign it? A. Yea, sir. Q. 
Ua took the $675? A. Yes, sir." 

He haci previously testified In a deposltlou 
hat he refused the company's offer to pay 
lim $250, saying it looked like they ougbt to 
[ire liiin $2,000,' and that, when the com- 
lany's representative finally offered $676, the 
jTer was acconapanied with a statement that 
he company was not liable, and that he (re- 
pondent) could either take the $676 or the 
ompany would "cut off negotiations, or 
omettalng like that"; that this "scared'' him, 
nd he then said he would take the $676^ On 
le trial he reiterated the correctness of this 
istimony. That he instituted this action 
ithont tendering to appellant the $673 paid 
Im when he signed there can he no question. 
[1-3] (a) In the circumstances of this case 
was incumbent upon respondent, before be 
uld attack the release for fraud In its pro- 
rement, to tender to appellant the amount 
ceived for Its execution. Althoff y. Transit 
>., 204 Mo. loc dt. 170, 171, 102 8. W. 642; 
itnam v. Boyer, 173 Me. Avp. loa dt. 898, 
[>, 158 S. W. 861, and cases dted. There 
IS no substantial evidence to support any 
!ory that tbe company's representative 
•d either guile or force to prevent respond- 
: from reading the release he signed ; and, 
it be assumed a tender In such circum- 
Dces would not be necessary, tbls case 
s not fall within that exception. Fur- 
r, respondent's own testimony demon- 
ites that the negotiations he details -were 
otiatlona for the setttement of his claim 
inst appellant, and that the release sign- 
er lie ther he read It or not, contained slm^ 
tbe agreement his testimony shows was 
le. In fact, his testimony, unaided' by the 
tten release, clearly shows a settlement of 
claim. In these circomstances his fall- 
to read the release before signing it is 
lo consequence on this phase of the case, 
itever the reason for such failure. That 
wbo signs a release containing an agree- 
,t be testifies he made can set it aside be- 
>e be did not read it, where it admittedly 
:alns the terms of that agreement, Is not 
^^^ we are willing to follow. We say he 
1S7 8.W.— 8 



admitted the agreement tb^ release evidences 
because his testimony as to the negotiations 
permits of no other rational construction. 
His present effort to maintain th^ contention 
that be believed the company was merely 
making, blm a present Is wholly inconsistent 
with bis testimony as to what was said and 
done, and is based on a remark or argument 
used to Induce his agreement to the settle- 
ment and release. The question as to re- 
.spondent's mental capadty to agree to a set- 
tlement Is, of course, another matter, and 
will be considered In another conneetlon. It 
is also to be noted that the demand Is un- 
liquidated and disputed, and there can be no 
claim respondent . was entitled to $675, or 
more, in every view of the transaction. 

[4] (b) While it was not pleaded, yet It Is 
now suggested, appellant waived the tender. 
This is based upon two letters. Over two 
years after the release was signed and the 
money paid respondent's present . attorney 
wrote appellant's claims attorney that he 
had been employed by respondent, had invest 
Ugated the facts in connection with respond- 
ent's injury, and believed appellant was "ab- 
solutely liable for it" ; that he was Informed 
"the couipany paid soon after the accident 
the sum of $675, end I presume took a re- 
lease"; that he desired to "take advantage 
of this conduct on the part of the company, 
and hereby tender back the ^um so mention- 
ed and so paid to Reid. The paper, contract, 
or release, is repudiated." The writer of this 
testified be, (a fact, tendered nothing; that 
he never offered appellant any money, check, 
or draft, and inclosed nothing of the kind in 
the letter sent It. In answer to that letter 
appellant's claims attorney in due time wrote 
respondent's attorney: 

"In response to ^our favor of March 23d, have 
to ?ny that investi^tion, as well as facts stated 
in affidavit of Mr. ueid himself, which is on my 
file, discloses that his injury was the result of 
his own neglect of duty and carelessness, and 
that be was treated with great generosity by the 
company on account of the seriousness of his in- 
juries alone, and no further voluntary action 
will be taken by the company > in this case." 

It is upon this last clause respondent's 
counsel bases fits 6uggestion tender was waiv- 
ed. No authorities are dted, and the mat- 
ter Is not arg«ed. Obviously there was no 
waiter. The clause relied on Indicated the 
company would pay nothing further unless 
compelled to do so. It Is not a reference, 
even, to a tender of any kind. There ' was 
no duty imposed upon appellant to take any 
voluntary action with resf)ect to a tender. 
It was the duty of resi>ondent and bis coun- 
sel to act in that matter if they ekpected to 
rely up6n' a tender In any subsequent action 
they ml^t begin. 

Gomisel, who wrote the letter for' raspond- 
ent, testified he made no tender. That is the 
only thing his testimony can mean. He tes- 
tified, further, that he had no money of re- 
spondent wherewith to make a tender, and 
respondent testified he bad no money avail- 
able for that purpose. It is said there Is 



DiAligg^y'' 



18 



18T SOUTHWESTERN REPOHTBR 



(Mo. 



testimony respondent could have raised the 
money among bis friends. He should have 
done so, and then tendered It to appellant 
If he expected to rely upon a tender. What 
he might have done cannot avail him in this 
case. The evidence shows no tender and oo 
waiver thereof. 

It follows that, so ftir as concerns the ques- 
tion of fraud in the procurement of the re- 
lease, respondent had not, In the circum- 
stances, put himself in a positlou to raise the 
Issue. 

[S, •] II. It is argued there was error in 
the instructions. Among other instructions 
given was the following: 

"The jury are instructed that there is no evi- 
dence in this case that the settlement in ques- 
tion was obtained by fraud or misrepresentation 
on th« part of the defendant or its agents." 

It Is said: (1) There was no issue of fraud 
submitted to the jury, and that this Instme- 
tlon might have misled the jury on the ques- 
tion of mental incapacity submitted In oth> 
er Instructions; and (2) that the instruc- 
tion was equivalent to telling the jury that 
"a fair settlement had been made." 

The petition alleges fraud, and respond- 
ent's counsel, In his opening statement, stat- 
ed the release had been procured by fraud. 
The case was tried solely upon that theory 
until, in rebuttal, respondent offered a wit- 
ness who gave testimony now relied on as 
tending to show mental Incapacity. In these 
circumstances it was appellant's right, in the 
circumstances of this case, as appears from 
what has been previously said, to have the 
issue of fraud spedflcally withdrawn from 
the jury. It is conceded this "ml(^t not 
bare been reversible error," but the otber 
matter mentioned is reUed upon as such. It 
is said the instruction amounted to telling 
the jury the claim was settled, and was 
fairly settled. We do not so regard it It 
simply withdrew the is^ue of fraud made by 
the pleadings, presented by the opening state- 
ment of respondent's counsel, and adverted 
to in the evidence.. As suggested by appel- 
lant's counsel, the words "the settlement in 
question" furnishes no Just ground for the- 
contention the jury could have been misled 
into believing the court meant to tell them 
there had been a binding settlement; they 
meant simply that "the settlement in ques- 
tion" in the case was not open to the de- 
fense of fraud, so far as the jury was con- 
cerned, and left the question of respondent's 
mental capacity to be determined upon in- 
structions given for both parties and relat- 
ing to that subject 

[7] III. Objections are made to two In- 
structions upon the subject of mental inca- 
pacity^- To these instructions and some oth- 



ers counsel fo^ respondent objected In the 
tdal court thus: 

"The only ritalios oars] objection I have to 
'D 4' is baaed upon our view of this case, that 
a release may be set aside for Imposition upon 
one in such circumstances of being unable to 
properly protect himself as enlixhtened consider- 
ation of the circumstances recognizes when the 
surroundings are suggested; that is, yon can't 
deal with a person who is ignorant and incapa- 
ble, although he may have saffident capacity, if 
it is exercised, to agree for himself, in such a 
way as to take advantage by overmling his 
mind through the fact of his weakness and inca- 
pacity." 

This objection proceeds upon the assump- 
tion of mental capacity, and is directed to 
the c<»itentlon that weakness, short of men- 
tal incapacity, is to be considered on the is- 
sue of fraud. If it does not mean this, we 
do not understand what it means. It is the 
chief argument in the brief. We have held 
the issue of fraud of this kind was not avail- 
able; was not In the case. The objection 
made is disposed of by that holding. We are 
also of the opinion that in stating that the 
objection made was the only one he had to 
the instruction counsel is precluded from 
making any dOiee now. If be bad stated be 
had no objection to make, he could make 
none now. When he stated he had none to 
make except one which he stated, he waived 
all but the excepted one. This was the ef- 
fect of the language used. We do not de- 
cide counsel must state spedflcally his ob- 
jection to Instructions or waive them, nor 
that the statement, without more, of cer- 
tain objections, is a waiver of others not 
stated. These matters are not Involved. 
What we bold is that, when counsel stated 
he had only a certain objection to make, he 
thereby limited tlie trial court's -examination 
of the instruction to that one objection, and 
limits himself to that objection on appeal. 

IV. This disposes of the ground upon 
which the new trial was granted, and all 
otber rulings to wbldi counsel for respond- 
ent has directed our attenticm. 

[8] A careful examination of the record 
shows that the jury's verdict was in all prob- 
ability a correct on& While we are not con- 
cerned with the weight of the evidence on 
this appeal, there is no Impropriety in say- 
ing it seems apparent from the record the 
jury's finding was not out of acxx>rd with it. 
There is no such condition of the evidence 
as creates surprise at the verdict or to war- 
rant any peculiar emphasis by ns of rulings 
against respondent cm the trial. We are sat- 
isfied the verdict ought to stand. 

The order granting the new trial is re- 
versed, and tbe cause is remanded, with di- 
rections to eatet judgment on the verdict. 
All concur. 



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iloi 



WIIiUAMSOK V. ROBERTS 



Mr 



mLLIAMSON et aL t. BOBERXS ct aL 
(Na 17960.) 

(Supreme Conrt ai Uissourl, DivMon No. 1. 
Jane 2, 1916.) 

1. Dkcext and Distribution ©=347(1) — 
F.ttLnRE TO Nakk or Provide for Ohh,- 

DBEN— StATTITB. 

By Rev. St. 1900, | 544, a testator dies in- 
testate QR to chfldren and their descendants not 
DBined or provided for in the will. 

TEd. Note.— For other cases, see Descent and 
Distribution, Cent. Dig. U 126, 130; Dec. Dig. 
€=47(1).] 

2. Wills «=3481— Tna or Takinq Eetict. 

A will takes effect at testator's death. 
[Ed. Note.— For other cases, see Wills, CJent. 
Dij. :; 1005-1007; Dec. Dig. <S=»481.1 

3. WiLi^B €=»486— Presumption. 

In making his will, a person is presumed to 
hold in jndgment what property, and th* method 
of its distribution, which he shall own at the 
time of his death. 

[Eli. Note.— For other cases, see Wills, Gent 
Dig. {§ 101&-1022; Dec Dig. «=>486.] 

•I. Descent and Distribution ^=347^) — 
Failure to Provide fob CniLDREN— Stat- 
ute. 
Under Bey. St. 1909, { 544, providing that 
if testator leaves a child or children, or descend- 
oDts of such child or children, in case of their 
death, not named or provided for in his will, he 
«b.ill be deemed to die intestate as remtrds tuch 
'■tiilt) or children, where testator left land which 
hi> devised to a daughter, the only child he nam- 
»l in his will, and personalty insufficient to pay 
his debts, the will providing that the rest of his 
(-state other than the devise to the daughter be 
rli?posed of as the law directs, there was no pr©- 
risioD for the other cfaildrea in the will aafiBaent 
(o validate the devise to the daughter. 

rE'l. Note. — For other cases, see Descent and 
rHstrihuHon, C!ent Dig. H 126, 130; Dec Dig. 
B=>47(1).] 

). Estoppel «=»110— EJstoppel in Pais. 
Estoppel ia an affirmative defense^ 

[Ed. Note.— For other cases, see Estoppel, 
ent. IMg. { 300; Dec. Dig. «=»110.] 

L Appkal and Error «=9l00S(l)— Review— 

Fl.NDINO. 

In a purely legal action, such as ejectment, 
lie Supreme Court ia concluded by the trial 
Qurt's finding of fact. 

[Ed. Note. — For other cases, see Appeal and 
rror. Cent. Dig. { S955; Dec Dig. «=» 
IX)S(l).] 

Appeal from Circuit Conrt, Greene County ; 
rcb A. Johnson, Judge. 

Suit In ejectment by J. N. Williamson and 
Iters against J. S. Roberts and others, 
rom a judgment for defendants, plaintiffs 
jpeal. Reversed and remanded, with dl- 
Ktiona. 

Vim. H. Horine and J. T. White, both of 
)rliifffleld, for appellants. Neville & Gor- 
an, of Springfield, for respondent^. 

BOND, J. I. This Is an ejectment, in- 
ilrlng tbe ^tle to certain land situated in 
reene county. Mo., necessitating the con- 
ruction of the will of R. H. Williamson, 
c-eosed. who owned said land at the time 
his death. At the time he executed the 



will in controversy aad at the date of his 
death, R. H. Williamson was the father of 
five children, one of whom, ■ an unmarried 
daughter, Alamanda, was a sufferer from 
epilepsy. It was his desire to provide for 
this unfortunate child, and in the second 
clause of his will he devised certain land to 
her, the title to which is in dispute in this 
qause, together .with certain other land which 
is the subject of another suit, with which 
we are not concerned on this appeal. At the 
time of his death, October 12, 1903, the tes- 
tator owned only the land described In the 
will and devised to his daughter Alamanda. 
On August 1, 1004, Alamanda Williamson 
was declared Insane, and H. A. Wommaclc 
was appointed as her guardian and curator. 
In order to provide for her, it t>ecame neces- 
sary to sell said land, which was done un- 
der the direction of the probate court on De- 
cember 15, 1906 ; the proceeds being applied 
by her guardian toward her maintenance 
and support until her death in 1912. In the 
meantime, the title to the land thus gold 
passed by mesne conveyances from the first 
purchaser Maze, to the defendant J. R. Rob- 
erts. 

This snit was instituted by the children 
and grandchildren of R. B. Williamson to 
recover the land from the last vendee on the 
theory that the will was void as to the other 
children of the testator who were not specif- 
loally mentioned nor provided for therein. 
The defendants in their answer set up the 
will as one defense, and also pleaded that 
plaintiffs were estopped by their conduct to 
dispute the validity of the will or to claim 
the land. 

[1] The trial court rendered Judgment for 
defendants, and found as a fact that plain- 
tiffs bad waived no right to question the 
validity of the will, but held the will was 
suffiplent to pass the title to the exclusion of 
the plaintiffs, and that the third clause ("[3] 
I desire that all the rest and residue and 
remainder of my estate be disposed of as the 
law directs") was sufficient provision for the 
plaintiffs to take them out of the statutory 
rule that a testator dies intestate as to chil- 
dren and their descendants not named or 
provided for In such will. R. S. 1909, { 544. 
Plaintiffs duly appealed to this court 

II. The question presented is whether the 
terms of the will bring It within the purview 
ot the statute annulling It as to such children 
or their descendants neither named nor pro- 
vided for therein, which shall survive the 
testator. ' The language of the statute is, to 
wit: 

"If any person make his last will, and die, 
leaving a child or children, or descendants of 
such child or children in case of their death, not 
named or provided for in such will, although 
born after making such will, or the death of the 
testator, every such testator, so far as shall re- 
gard such child or children, or their descendants, 
not provided for, shall be deemed to die intes- 
tate." 



»For othn cases tee wm* toplo and KEY-NUMBER In all Kajr-Numberad Dlgoata aad IndexM 



DigJ 



20' 



187 rnvravmaTsas bdporteb 



(Mo. 



It has been repeatedly interpreted and con- 
strued both In this state and In other states 
having substantially the same statute. Mey- 
ers V. Watson, 234 Mo. 286, 136 8. W. 236; 
Hargadlne v. Pulte, 27 Mo. 423; Wetherall 
V. Harris, 51 Mo. loc. dt 68; Pounds r. 
Dale, 48 Mo. 470 ; Thomas v. Black, 113 Mo. 
ee, 20 8. W. 657; Bradley t. Bradley, 24 
Mo. 311; Boman t. Boman, 49 Fed. 329, 1 
O. O. A. 274; Gerrlsh v. Gerrlsh, 8 Or. 351, 
34 Am. Rep. 685; Oage y. Gage, 29 N. H. 
533 ; In re Barker's Estate, 5 Wash. 390, 31 
Pac. 976; Purdy v. Dayls, 18 Wash. 164, 42 
Pac. 620; Bower v. Bower, 6 Wash. 225, 81 
Pac. 598. The rule dedudble from these de- 
cisions, as well as the language of the above 
statute, Is that, where the will falls to name 
or make a substantial provision for the chil- 
dren or their descendants surviving the tes- 
tator, It Is void as to them only. When the 
will under review was made, and also at the 
death of the testator, h© was the father of 
five children, no one of whom was mentioned 
in the Instrument, except his afflicted, un- 
married daughter Alamanda Williamson. 
Nor was there any provision of any kind or 
degree for his remaining children, unless 
such i»rovlslon was made by the disposition 
expressed in the third clause of his will, 
supra. 

[2] It is npon this Clause of the will alone 
that respondaits base their claim that the 
requirements of the above statute were com- 
plied with, and consequently that the testator 
validly devised the land in question to one 
of his children, thereby cnttlng off the rights 
of the others and their descendants. It Is 
not claimed for respondents that the alterna- 
tive provision of the statute providing for 
the naming of all the children or their de- 
scendants existing at the death of ttie tes- 
tator was observed. Hence the question to 
be determined is whether the clause in ques- 
tion constituted such a vrovlBlon for the un- 
named children as to exempt the present 
will from the operation of the statute. The 
will, of course, took effect at the death of 
the maker. The record is undisputed that 
at his death he owned a small amount of 
personalty which was insufficient to pay his 
debts, and nothing else except the land spe- 
dflcally devised to his daughter Alamanda. 

[3, 4] Bearing in mind that in making his 
will a person is presumed to hold in judg- 
ment what property, and the method of dis- 
tribution thereof, .which he shall own at the 
time of his death (Mueller v. Buenger, 184 
Mo. loc cit. 476, 83 S. W. 458, 67 L. R. A 
648, 105 Am. St Rep. 541), and, considering 
in the same connection what actually hap> 



pened at the time of the decease «f R. H. 
Williamson, we see no reason for ascribing 
to him the intention of devising any part of 
his estate to his four unnamed children. He 
left nothing upon which such a devise could 
take ^ect, for his estate was insolvent and 
comprised no other land than that which 
had been spedflcally devised to Alamanda. 
Nor is there anything in the language of the 
clause quoted above which necessarily Im- 
pUes that the testator had bis other children 
in mind when he made the wiU. The effect 
of that clause, as appears from inspection, 
was to leave whatever undisposed estate he 
might have at the time of his death to the 
operation of the law, whidi would, primarily, 
apply it to the payment of his debts. As he 
did not leave enough after excluding the 
devise to Alamanda, to pay bis debts, it can- 
not be said that. In making a provision whidi 
would subject what he did leave to that bur- 
den, such an act necessarily implied that he 
was thinking of and providing for his other 
children who could not obtain any part of 
such residue. 

The idea whidi underlies the statute Is 
that the will must show expressly that the 
children to be cut off thereby were named, 
or audi substantial provision for their ben- 
efit as to raise a necessary implication that 
they were in the mlhd of the testator. Oar 
conclusion is that there was nothing In the 
terms of the present v^lU, or the drcum- 
stances of Its execaticm and as they existed 
at the time of the death of the testator, whidi 
takes It out of the provision of the statute, 
and hence as to these plaintUts R. H. Wil- 
liamson -must be held to have died intestate. 

[S, n III. It is Insisted, on behalf of re- 
spondents, that the present plaintiffs are es- 
topped or predoded from the assertion of 
their heritable rights under the facts of 
this record. We are unable to concur in 
that view, for we have been unable to find, 
and the learned counsel for respondent has 
failed to point out to us, any facts or cir- 
cumstances in this record which oonstitnte 
an estoppel against the institution of this 
suit. Besides, that is an affirmative defense 
which the court below found against the re- 
spondents, and, this being a purely legal ac- 
tion, we are concluded by that finding under 
the fticts in this record. 

From what has been said, it follows that 
the construction of ^ the will by the learned 
trial court was erroneous. 

The judgment in this case is therefore re- 
versed, and the cause remanded, with direc- 
tions to proceed in conformity with this opin- 
ion. All concnr. 



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STATU V. ISAACS 



21 



STATE ▼. ISAACS. (No. 19888.) 

(Snpreme Conrt of Missouri, Division No. 2. 
May 31, 1816.) 

t CBmntAi. Law «=!»1066(1)— Appkai ahd 
Ebbob— Pkesbntation in Lowee Coobt OJ" 
Gbodnds fob Rkvmw— Bxcbpxions. 
In a prosecntion for homicide, inBttuctiraiB 

pven or refused, to wldch no exceptions were 

taTed, are not reviewable on appeal 
[Bd. Note.— For other cases, see Criminal Law, 

Cit Dl«. M 2688, 2670; Dec. Dig. (fc=5l056(l).l 

2. HOKICIDB ®=»174(6)— BVIDENCB— Admissi- 
BILITT. 

In a proaecntlon for homicide, where It ai^ 
pcaied that soon after the crime the body ' of 
di« deceased and surrounding premises were 
Kirched and no weapons were found, but later 
a pair of "knucks" were found n^ar the body 
of the deceased, evidence tending to show that 
defendant, instead of deceased, had access to the 
"Imacfca" was admissible. 

[Ed. Note.— For other cases, see Homicide, 
Cent Dig. § 364; Dec. Dig. «=sl74(6).] 

3. CBnrmAi. Law «=»e88(l)— Apmbai. awd Bb- 
lOB — OBJBcnoBfs. , , , , 

In a prosecution for homicide, where defend- 
tst allowed testimony concerning the ownership 
of & weapon found near deceased some time after 
the crime to be introduced without objection 
tsd folly cross-examined the witness, he could 
not later object because the testimony proved un- 
favorable. 

[Ed. Note.— For other cases, see Criminal Law, 
Cent Dig. M 1651, 1653; Dec, IMg. «=9698(1)-; 
Witnesses, Gent. Dig. | 864.] 

4. CBnaiTAi. Law «=»719a)— Tbiait-Btaot- 
MXHTB or COTmSEI.. 

In a prosecirtion for homicide, where the no- 
ord Is entirely silent as to alleged statements of 
the defendant concerning a sister of the deceased, 
or that they were false or slanderous, or adverse- 
ly reflected on her good name, statements or 
state's counsel, that "defendant had circulated 
alanderons reports concerning deceased's sister, 
and deceased had a right to inquire about such 
reports," that "in the dlfflculty in which deceased 
was killed he was defending the good name, of 
Us sister," and that "defendant had made false 
statements concerning the young sister of the 
deceased, and in defending her deceased did only 
what any one wotdd have done for a little sis- 
ter," were improper. 

[Kd. Note.— For other cases, see Criminal Law, 
Cent Dig. { 1669; Dec Dig. <S=»719(1).] 

5. CsnaNAi. Law «=»718 — Tbial— Statb- 

MKin'S OF COTTNSEL. 

In a prosecution for homicide, statements 
of state's counsel Uiat, if defendant had not been 
vlolathic the law by carrying a revolver, de- 
ceased would not have been killed, was improper, 
race it is immaterial whether defendant was 
violating the law in carrying the weapon. 

[Ed. Note.— For other cases, see Criminal Law, 
Cent Dig. I 1668 ; Dec. Dig. <S=»718.] 

Appeal from Circuit Court, Dallas County ; 
CL B. Sklnker, Judge. 

Alfred Isaacs was convicted of manslaugh- 
ter in the fourth degree, and he appeals. Re- 
versed and remanded. 

Defendant was charged by Indictment with 
- having taken the lite of one William Camp- 
hell in Dallas county, this state, under such 
drcnmstances as to constitute murder in the 
second degree. He was convicted of man- 



slaughter in the fourth degree, and sentenced 
to imprisonment in the penitentiary for a 
term oC two years. He admitted the kllliog. 
but attempted to justify the act upon the 
groimd of self -defense. 

The state's evidence is that the deceased, 
his brother, and defendant, together with 
others, were, on the evening of the dlfflculty, 
attending an entertainment ; that during the 
progress thereof these three persons, at dif- 
ferent times, left the house, and soon there- 
after the deceased and bis brother accosted 
the defendant and Inquired of him as to 
whether he had retracted certain alleged 
false Btatemoats concerning their younger sis- 
ter. Upon receiving a negative reply, the 
deceased, after releasing himself from the 
hold of his brother, rushed towards and 
struck at defendant Defendant ran, and de- 
ceased followed at close proximity. Running 
thus a distance of 20 or 25 yards, the de- 
fendant drew from his pocket a pistol and 
fired a shot, causing almost Instant death. 

The body and wearing apparel of the de- 
ceased was soon thereafter examined, and 
no weapons of any kind were found. An in- 
spection was also made of the surrounding 
premises, and no weapons found. Several 
hours later, however, and after the arrival 
of the officers, and many other persons, a 
weapon, to wit, "knucks," was found near 
the body and at a place that had been pre- 
viously inspected. This weapon Is described 
as a "constructed pair of knucks made out 
of a corn-planter plate." The state then 
proved br one Dtmcan that something like 
a year prior to the dlfflculty he had placed 
an Instrument, which he thought was the 
one found near the body of deceased, in an 
outhouse belonging to him, and that later, 
and some time prior to the difficulty, he 
found In this outhouse a couple of bundles 
of wearing apparel, which, he says, the de- 
fendant later called for and claimed as his 
own, stating, at the time, that he had, prior 
thereto, left these In the outhouse where the 
witness had placed the instrument referred 
to. After this testimony was offered, and 
received without objection, and after full 
cross-examination la relation thereto, defend- 
ant moved the court to strike the same out, 
alleging that it was immaterial and did not 
tend to prove any issue In the case. 

On the part of the defendant, the evidence 
tends to show that, when he was approached 
by the deceased and his brother and asked 
as to whether he had made retraction of his 
alleged false statements, he not only said 
he had not, but also that he had neither said 
nor thought of anything derogatory of the 
character of the girl, whereupon the deceas- 
ed assaulted him and knocked him to the 
ground; that in his efforts to avoid farther 
difficulty he ran and was pursued by the de- 
ceased, until deceased was so close to him 
that he shot In order to protect himself. He 



9For otlior oaMS ••• sam* topto and KBT-NUMBBR in all Kar-Numbered DisnU sad ladoxM 



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22 



187 SOUTHW£}SXBRN fUfiPORTBR 



(Ua 



also offered evidence tendltag to show that, 
on prior occasions, the deceased had stated 
that be was "looking for" him (the defend- 
ant), and that he would do him bodily harm, 
because of certain things he had said aboat 
the sister. These statements he testified had 
been oommnnicated to him, and that on one 
prior occasion he had left a public meeting 
because be had been told that the deceased 
was then "looking for" him. 

The coroner testified that on the day fol- 
lowing the killing he saw the defendant and 
observed a small puncture Just above the 
left ear, and a cut in the cap which defend- 
ant wore, corresponding in position to the 
cut on the ear; that such a punctnre and 
cut could have been made by an Instrument 
or weapon like the "knucks" which were 
found near the body of the deceased. 

O. H. Scott and John S. Haymes, both of 
Buffalo, for appellant John T. Barker, Atty. 
Gen. (Lewis H. Cook, of Jefferson Olty, of 
counsel), for the State. 

RBVELLE, J. (after stating the facts as 
above). [1] I. Defendant complains because 
of one portion of the instruction on self-de- 
fense ; but this assignment is not reviewable, 
since no exceptions were saved to any of the 
Instructions, either given or refused. Not- 
withstanding this omission, we have exam- 
ined them and find that they are as favorable 
to defendant as he could ask. 

[2, 3] II. The court did not err in refusing 
to strike out the testimony of witness Dun- 
can. Soon after the fatal occurrence, both 
the body of deceased and the surrounding 
premises were examined for the express pur- 
pose of ascertaining whether the deceased 
had been armed. No weapon was then found, 
but several hours later a pair of "knucks" 
was discovered near the body of the deceased, 
and so located that the state was justified 
In endeavoring to explain their peculiar ap- 
pearance, and who was responsible therefor. 
The evidence of this witness tended to show 
that, while the instrument belonged to one 
other than either the defendant or deceased, 
the same had been missing from the posses- 
sion of the owner, and that the defendant, 
instead of deceased, had had access thereto 
and the opi)ortunlty to possess the same at 
the time in question. In addition to this, 
the record discloses that this testimony was 
received without any objection whatever, and 
that the defendant fully cross-examined the 
witness in relation thereto, bringing out more 
fully the facts than did the state. As said 
by this court in State v. Ferguson, 188 S. W. 
336 (not yet officially reported): 

"Parties are not permitted to remain silent 
when improper questions are asked and take 
chances on receiving helpful replies, and then 
object if the answer proves unfavorable." 



[4, S] III. We come now to an assignment 
of greater meitt, tibe alleged improper re- 
marks of state's counsel. During the argu- 
ment it was said on behalf of the state: 

"Defendant had circulated slanderons reports 
concerning William Campbell's sister, and Oa.mp- 
bell had a right to inquire about such reports. 
* * * In the difficulty in which Campbell 
was killed, he was defendins the good name of 
hia sister. • • • Defendant had made false 
statements concerning the young sister of Wil- 
liam Campbell, and in defending her Campbell 
did only what you or any one else would have 
done for a little sister." 

Again, counsel for the state made the fol- 
lowing statement: 

"If defendant bad not been violating the law 
by carrying a revolver, Campbell would not 
have been killed." 

The record Is entirely silent as to wbat 
statements, if any, the defendant had made 
concerning the sister of deceased. It like- 
wise fails to Bhosw that his alleged state- 
ments were false or 'slanderous, or of a na- 
ture that adversely reflected upon her good 
name. That counsel was outside of the rec- 
ord and in a field foreign to the case Is en- 
tirely clear. The Injection of this extraneous 
issue, particularly in this wise, was clearly 
improper, and we need not go tor in our cal- 
culations of the effect of such statements tin- 
til the estimate of the prejudice that they 
were likely to produce carries thew bey<Mid 
the harmless lina We liave some conception 
of human nature and know that there are 
some things which generally reaches and in- 
fluences It The statement that, "if defend- 
ant had not been violating the law by carry- 
ing a revolver, Campbell would not have 
been killed," was also improper. For oar 
present purpose, it \b unnecessary to deter- 
mine whether the defendant was violating 
the law In carrying this weapon, this being 
immaterial, because, as said by this court In 
State V. Heath, 221 Mo. loc. dt 594, 121 S. 
W. 149: 

"Obviously the fact as to whether he was in 
the possession of a pistol and had a right to 
carry it, or was carrying it unlawfully, has no 
tendency to prove or disprove any of the issues 
submitted to the jury. The overshadowing ques- 
tion, so far as this 'proposition is concern^, is 
as to the use made of such pistol at the time of 
the difficulty, that is to say, whether or not the 
defendant, without any just or lawful provoca- 
tion, killed the deceased by the use of such pis- 
tol, or, on the other hand, whether or not be used 
it upon a reasonable apprehension of danger and 
for the purpose of protecting his own life, <« 
used It in a sudden heat of passion aroused by 
some just or lawful provocation, and not strict- 
ly upon the ground of self-defense, as defined in 
the instructions in this cause." 

The same proposition was Involved In 
State V. Henf row, 111 Mo. 588, 20 S. W. 299, 
and the same doctrine and oonduslon an- 
nounced. 

For the error pointed out, the judgment Is 
reversed, and the cause remanded. All con-, 
ctir. 



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■ STATB V. ELLISON 



2S 



STATE ex reL DETROIT FIKE * MARINE 

IXS. CO. ▼. ELLISON et al. (Na 18967.) 
(Sapreme CSourt of Missoari. In Banc. June 
2, 1916.) 

1. Tbial «=3237(3)— iKBTBUcnoN— Deobeb or 
Pboof. 

In an action on a policy of fire insuronoe, 
where the defense was arson, an instruction in 
effect requiring proof by a preponderance of the 
endence of the circumstances relied on to show 
insured was guilty of arson, and then requiring 
that circumstances so proved "must be incon- 
sistent with any other reasonable hypothesis 
than that of his guilt," was improper. 

[Gd. Note.— For other cases, see Trial, Cent 
&« { 648 : Dec. Dig. «s»237(8).] 

2. Etidbrcx ®s>60— PSXStniTTIOIT OT IlTlT<y- 

aacK OF Cbiub— Btfkot. 
In a dyil case, where the commission of 
(rime is in issue, the presumption of innocence 
pitces the burden of proof on the party alleging 
a crime was committed, and, in the absence, ol 
endence of its commission, warrants a direction 
of verdict against the charge of crime. 

{Ei. Note. — For other cases, see Evidence, 
Cent Dig. | 81; Dec. Dig. <S=>60.] 

3. BviDBRCE ^=>86— "Rebuttabu Pbbsttuf- 
noR or Law." 

A rebuttable presumption of law generally 
may be defined as a conclusion, whicE, in the 
absence of evidence upon the exact question, 
the law draws from other proof made or from 
(acts judicially noticed or both, the burden of 
proof cast by it being satisfied by the presenta- 
tion of evidence sufficient to convince the jnry 
that the probabilities of truth are against the 
party whom the presumption relieves of the 
harden of proof ; the presumption itself not be- 
ing evidence. 

[Ed. Note. — For other cases, see Evidence, 
Cent. Dig. H 107. 108; Dec Dig. «8=>8«. 

For other definitions, see Words and Phrases, 
Second Series, Rebuttable Presumption.] 

i. EVIDKNCK «=»8ft— REBtJTTAL OF PbESTTUP- 

no:( OF Law— BtniDBN of Pboof. 
Despite a rebuttable presumption of law, the 
party upon whom it easts the burden of proof 
in a dvil case makes out his case when he ad- 
daces evidence proving his allegation of fact to 
be more probably true than the contrary. 

FEd. Note.— For other cases, see Evidence, 
Cent Dig. {{ 107, 108; Dec Dig. 9=>8a.1 

5. Tbial *=>234(7)— Instbuction- Bubden of 
Pboof. 

In an action on a policy of fire insurance, 
where the defense was arson, an instruction that 
"in dvfl niita (Nke this (Mte), Just as in the trial 
of a person barged with crime in a criminal 
case, the law presumes that the person charged 
with the willful burning of the property is inno- 
cent," was erroneous as directing the jury that 
they must look for proof of a more conclusive 
character than in ordinary civil cases. 

[Ed. Note.— For other cases, see Trial, Cent. 
Dig. I 537; Dec Dig. <&=»234(7).] 

6. Tbial «=>290(7) — iNarEUCTioNS — Cdbinq 
Ebbob. 

In an action on a fire policy, where the de- 
fense was arson, the added clause that "the pre- 
sumption continues until be is proven guilty by 
the preponderance of credible evidence in the 
case" did not cure tiie error in the charge that 
"in dvil soits Oike this one), just as In the trial 
of a person charged with crime in a criminal 
case, the law presumes that the person charged 
with the willful burning of property is inno: 
c«it" 

(Ed. Note.— BVw other cases, see Trial, Cent. 
Dig. § 710; Dec Dig. «=>296(7).] 



7. Appeal and Brbob *s»882C12)— IwvmtD 

EbROB— I NSTBUCTIOK . 

In an action on a fire policy, where the de- 
fense was arson, error in charging that In dvil 
suits, as in the trial of .a person charged with 
crime, the law presumed that the person charg- 
ed is innocent, was not invited by an instruction 
requested by defendant not mentioning the pre- 
sumption of innocence, specifically stating that 
in a civil action like the present there is no ques- 
tion whether any crime has been committed, etc 

[Ed. Note.— For other cnses, see Apneal and 
Error, Cenfc Dig. I 8602; Dec Dig. «=» 
882(12).] 

Bond, J., dissenting. 

Certiorari by the State, on the relation ot 
the Detroit Fire & Marlxte Insurance Com- 
pany, against James Ellisoa and others, to 
quash the record of the Kansas City Court 
of Appeals (Rice ▼. Detroit Fire & Marine 
Ins. Co., 176 S. W. 1113) affirming judgment 
for plaintiffs in an action by Benjamin Wein- 
berg and another against the relator. Rec- 
ord of the Court of Appeals quashed. 

I. J. Rlngolsky and Fyke & Snider, all of 
Kansas City, for relator. Ed. E. Yates, of 
Kansas Ci^, and Perry S. Rader, of Jeffer- 
son City, for respondenta. 

BLAIR, J. In the Jackson drcnit court 
Benjamin Weinberg and W. J. Bice recov- 
ered Judgment against relator on a fire in- 
surance policy. On appeal the ECansaE City 
Court of Appeals affirmed that judgment. 
Rice V. Detroit Fire & Marine Ins. Co. of 
Detroit, Mich., 176 8. W. 1113, and our writ 
of certiorari is invoked to quash the record. 

Bioe was a creditor of Weinberg, and his 
Interest arose out of an assignment of the 
policy to him to secure his claim. The an- 
swer averred the fire causing the loss was 
of incendiary origin, and that Weinberg waa 
responsible, with otbers, therefOr. There 
was evidence tending to prove thlB averment 
and evidence tending to refute it and to 
show the defense was ocmcocted. 

Relator contends the Court of Appeals 
failed to follow the controlling decisions o( 
thla court in ruling upon assignments of er- 
ror lodged in that court against the follow- 
ing Instructions: 

"(2) The court instructs the jnry that one of 
the defenses set up by defendant in thia case is 
the willful burning of the insured property by 
the plaintiff Benjamin Weinberg. Now upon 
this issue the court instructs you that the bur- 
den of proving by the greater weight of the be- 
lievable evidence that Benjamin Weinberg did, 
in fact, intentionally set or cause to be set the 
fire that burned said property is on the defend- 
ant; and you are further instructed that in 
civil suits (like this one), just as in the trial of 
a person charged with a crime in a criminal 
case, the law presumes that the person charged 
with the willful burning of the property is in- 
nocent, and the presumption continues until 
he is proven guiltj by a preponderance of the 
credible evidence m the case. 

"(3) The jury are instructed that to warrant a 
finding on circumstantial evidence in this case 
that plaintiff Benjamin Weinberg burned or 
caused to be burned the property in question 
the circumstances must be proved to your satjs- 



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24 



187 SODTHWBSTEIBM.RBSORTBB 



CM«. 



faction 1>y a prepoaderanee of the evidence, and 

when the circumstances are so established they 
must point to the said plaintiff, and must tie in- 
consistent with any other reasonable bypothe^ 
sis." 

Relator contends tbese Instmctlons im- 
posed upon it the burden of making out ita 
defense by a weight of evidence greater than 
a mere preponderance, and thus violate the 
settled rule In civil cases and run counter to 
designated decisions of this court 

[1] I. The Court of Appeals held the evi- 
dence warranted an Instruction on circum- 
stantial evidence, and then held that instruc- 
tion 3 was free from prejudicial error. 

Relator contends the tlnal clause of the in- 
struction exacted evidence tteyond a mere 
preponderance, and that the holding to the 
contrary is In conflict with Rothschild v. In- 
surance Co., 62 Mo. 856; Edwards v. Knapp, 
97 Mo. 439, 10 S. W. 64; Marshall v. Insur- 
ance Co., 43 Mo. 586; Smith r. Burrus, 106 
Mo. 101, 16 S. W. 881, 13 L. R. A. 59, 27 
Am. St Rep. 329; Dalcan y. Chase & Son, 
197 Mo. 238, 94 S. W. 944; Gay v. Glllilan, 
92 Mo. 250, 5 S. W. 7. 1 Am. St Hep. 712. 
The instruction, in eflCect, requires proof, by 
a preponderance of the evidence, of the cir- 
cumstances relied on to show 'Weinberg was 
guUty of arson, and then requires that the 
circumstances so proved "must be inconsist- 
ent with any other reasonable hypothesis 
than that of his guilt 

In Rothschild v. Insurance Co., supra, in 
which the defense set up to the policy was, 
as in this case, arson, this court held it was 
error so to word an instruction as to im- 
press the Jury "with the belief that greater 
caution should be exercised by them and 
proof of a more conclusive character should 
be required" to prove in a civil case facts 
constituting a crime than was required in 
"ordinary civil cases." By this last was 
meant cases in which no criminal act was in 
issue. The Court of Appeals quoted this 
rule, but held, as stated, instruction 3 con- 
tained no prejudicial error. 

In Gay v. Glllilan the question was pre- 
sented. In that case the trial court had 
given an instruction on the issue of undue 
influence in procuring the execution of a 
will which instruction contained, among oth- 
er things, this direction: 

"And in order to set aside the will of a person 
of the sufficient mental capacity aforesaid, on 
the ground of undue influence, it must be shown 
that the circumstances of its execution are in- 
consistent with any other hypothesis than such 
undue influence, which cannot be presumed, but 
must be shown in connection with the will, and 
it devolves upon those contesting the will to 
show such undue influence by a preponderance 
of the testimony." 

The instruction was held erroneous on 
several grounds. The court said the rule it 
laid down was more stringent than that ap- 
plicable to criminal cases, but that, even if 
the words "reasonable hypothesis" had been 
employed Instead of "hyi)othesis" alone, yet 
the instruction would hare been erroneous. 



Instruction 8 introduces Into this ease the 
rule of t1i» criminal law. Fro6f of drcnm- 
stanires wbl^h exclude every "other reason- 
able, hypothesis" makes out the proof beyond 
a reasonable doubt Tbi^ appears from the 
language itself. If, on the facts, the only 
reasonable hypothesis is that one charged 
with crime is guilty, obviously there is no 
reasonable doiibt of his guilt A given set 
of circumstances reasonably may be explica- 
ble on more than one reasonable hypothesis. 
In a criminal case the Jury Is not at liberty 
to take either of two equally reasonable hy- 
potheses ' and And the defendant guUty. 
Neither may it find him guilty upon an hy- 
pothesis more probably true than another 
which yet is reasonable. It can act upon 
the hypothesis of guilt only when that is the 
only reasonable one. In a civil case the 
jury may, as between two or more- hypoth- 
eses, choose the more reasonable and find 
against the less reasonable one which may 
accord with innocence. The approval of this 
instruction by the Court of Appeals brought 
its opinion into conflict with the decisions 
cited and the principle they announce, 
and necessitates the quashal of the record 
brought here by our writ. 

The decision of this Court in Fritz t. Rail- 
road, 243 Mo. loc. dt 77, 78, 148 S. W. 78, 
is not in conflict with that conclusion. In 
that case the burden was upon plaintiff to 
prove that one of defendant's locomotives 
communicated the flre which caused the loss 
of which the petition complained. This proof 
plaintiff sought to make by circumstantial 
evidence. The court quoted several defini- 
tions of circumstantial evidence which sup- 
port the idea that: 

'The force and effect of circumstantial evi- 
dence depend upon ita incompatibility with, and 
incompatibility of, explanaiion or solution up- 
on any other supposition than that of the truth 
of the fact which it is adduced to prove." 

The court stated its own view to be that: 

"In cases turning on circumstantial • • • 

evidence, the proof should have a tendency to 

exclude any other reasonable conclusion than 

the principal fact" 

It held the evidence in that case had no 
such tendency, and, in effect, that the cir- 
cumstances proved supported no reasonable 
theory that could render defendant liable. 
Running through the opinion is also a tacit 
recognition of the rule thftt in case the evi- 
dence tends to prove two causes of loss or 
Injury, for one of which defendant is re- 
sponsible, and for one of which he is not, 
the burden is upon plaintiff to adduce evi- 
dence tending to show it to be more probable 
than the loss or injury resulted from the 
cause for which defendant is liable. We do 
not think the opinion can be understood to 
mean that under no circumstances can cir- 
cumstances proved said to be explicable, for 
the practical purposes of a lawsuit, on more 
tlwn one reasonable hypothesis. That this 
is not the doctrine of this 
by tlie language of all Instructions 



bests. That this . 

court is implied r^ (J I ^ 
ructions in crlm- ^ 



HoJ 



BXATB T. XLIilBON 



lull cam on drcHiaatantUl STtdeace raqolr- 
Isg that It exclude eyer7 otber reasonable by- 
pcthesls save tbat of defendant's guilt. Xbe 
Fritz Case la not opposed to tbe conclusion 
reached. 

11. In passing upon Instmctlon 2, tbe Court 
of Appeals (dtlng tbe decisions In ESdwards 
V. Koapp & Co., 97 Mo. 432, 10 S. W. 64 ; 
Smith T. Burras, 106 Mo. loc. dt. 101, 16 S. 
W. 881, 13 Lk R. A. 59, 27 Am. St Rep. 329 ; 
ud Botbscblld v. Insurance Co., 62 Mo. 360 
et aeq.) held tbat: 

"In civil cameB mvolvlna; a charge of crime, 
tie rule in this state is that the rights of the 
parties are to be determined by a preponderance 
of tbe evidence ; while in a criminal prosecution 
tie crime moat be proved beyond a reasonable 
doubt." 

It further beld tbat: 

"Instructions are to be condemned as prejudi- 
ciil which directly or indirectly suggest to the 
jnr.T that the measure of proof required to es- 
tiblish the existence of a crime in issue in a 
dvil case is aCTected by the criminal nature of 
tbe act under inyestlgation" — following Botha- 
cbild V. Ins. Co., supra. 

It pointed out that tn tbat case tbls court 
condemned an Instruction because: 

It was held "calculated to impress the jury 
with tbe belief that greater caution should be 
eiercised by them and proof of a more conclu- 
sive character should be required, than in ordl- 
oaxy civil cases." 

Tbe Instruction beld erroneous In tbe Rotbs- 
du'ld Case, In wblcb case tbe defense set 
np to tbe policy was tbe same as In tbls, 
vas like tbat approved In Marshall v. In& 
Co., 43 Mo. 586, except tbat tbe trial court 
added to tbe statement of tbe rule as to tbe 
requisite weight of evidence . In sucb cases 
the clause: 

'Re^rd being had, however, to the serious 
Dsturc of the charge, in determining the pre- 
ponderance or weight of evidence." 

This added clause this court held vitiated 
'hit Instruction. 

Discussing Instruction 2 Involved bere, aft- 
ir quoting tbe rule and authorities mentlon- 
id above, the Court of Appeals In this case 
aid: 

"The instruction nnder consideration came 
lerilously near the line of error marked out in 
Iw cited case (Rothschild v. Insurance Co.) in 
tfing that tbe presumption of innocence in a 
ivil rase is the same as that in a criminal case, 
lot, however, because the definition is inaccu- 
ite. but that for tbe saving clause we shall note 
t would have been calculated to induce the be- 
ief tbat tbe same degree of proof was required 
s in a criminal prosecution for the same of- 
snse." 

The court tben beld that the presumption 
f Innocence applied wltb equal force, what- 
rer the character of the proceeding in which 
D alleged crime is brought under Judicial 
ivestigatlon, but held that wltb respect to 
le pre.sumption : 

"Tbe difference between the two kinds of ae- 
ons (civil and criminal] is that in a criminal 
roceedlng the presumption must be overcome 
ijood a reasonable doubt, while in a civil suit 

maj be overcome by a preponderance or mere 
'izht of evidence. This the jury were clearly 
W in the concluding clause: "Tlie presumption 
isdnues ootil be u proven goilty by a pre- 



ponderance of tbe credible evldeBct ia the CMCt' 
We must assume the Jury were men of common 
sense and ordinary understanding, and, if they 
were, we do not see how they could have been 
misled by the instruction into the belief that de- 
fendant had a greater burden than the law im- 
posed upon it 

A rehearing was granted and the cause re- 
argued, and the Court of Appeals handed 
down a supplementary opinion in wblcb it 
said the reargument left It "convinced of the 
correctness of the opinion delivered at the 
first bearing." This opinion then proceeded: 

"There, perhaps, should have been omitted 
from plaintifTs instruction 2, set out in the 
original opinion, the following words: 'Just as 
in the trial of a person charged with crime in 
a criminal case.' If, standing alone, those words 
would have a tendency to suggest to the jury 
that the aame character of proof must be pro- 
duced in a civil action as in a criminal prosecu- 
tion, thereby coming within the case of Roths- 
child V. Insurance Co., 62 Mo. loc. dt 359, 
that tendency is lost when the instruction is 
read in connection with defendant's No. 7. For 
in that instruction defendant itself has the court 
to bring to the jury's attention the difference be- 
tween a civil and a criminal action and instruct- 
ing tbem that, while in a criminal action there 
must be evidence to convince beyond a reason- 
able doubt, such rule did not obtain in a civil 
action, and explaining the difference in requisite 
of proof in tne two classes of cases. The in- 
struction is taken bodily from that given in the 
Rothschild Case, save the last clause, added 'by 
the circuit court and condemned by the Sujireme 
Court. \\'ben the two instructions are rend to- 
gether, there can be no reasonable grround for the 
suggestion that the jury was misled. If it was 
improper tor plaintiff to have referred at all to 
a criminal case. It was an impropriety adopted 
and joined in by defendant; a fault condoned." 

Relator contends the opinion of the Court 
of Appeals, In so far as it approves Instruc- 
tion 2 Is In conflict with Rodaa v. Transit 
Co., 207 Mo. 392, 105 S. W. 1061; Mockowlk 
V. Railroad, 196 Mo. 571, 94 S. W. 256; State 
V. Kennedy, 154 Mo. 268, 288, 55 S. W. 293; 
and Morton v. Heldorn, 135 Mo. 608, 37 S. 
W. 504. 

(a) In Morton v. Heldorn this court con- 
demned an Instruction which told tbe Jury 
that a will executed and published by one of 
sound mind was "presumed to be his free and 
voluntary act, and yon cannot' In such case 
And against said will on the ground of undue 
influence, unless the charge of undue influence 
has been proven to your satisfaction by a pre- 
ponderance of the evidence." It was held 
tbat the use, without explanation of the 
words "prepondemnee of the evidence," was 
not necessarily erroneous, but tbat their use 
In connection with the words "proven to your 
satisfaction" and the direction as to the as- 
serted presumption, would lead the jury to 
Infer naturally that tbe " "preponderance of 
the evidence' must be such as to overcome 
the presumption which the court declared to 
exist as a matter of law." The opinion pro- 
ceeds: 

"That declaration Is not entirely correct 
When the cause was submitted to the jury, there 
was no presumption of the law that the docu- 
ment was testator's "free and voluntary act.' 
Iliere was evidence before them which all the 
parties and the court olike interpreted as tend- 
ing to prove undue influence. Both adveisarj 



I 



igitized by 



S^e 



187 SOUl'HWSSTBa'V .Bffi>ORTER 



(Mo. 



parties asbed and obtained instructions on that 
theory. In that state of the case it was not 
proper to give proponents of the will the b'enefit 
of a so-called presumption which is merely one 
of fact, applied in the absence of any evidence 
permitting a different inference." 

The Mockowik and Rodan Cases apply a 
like rule to efforts to rely upon the presump- 
tion of ordinary care on the part of Injured 
persons when there is evidence tending to 
prove the actual facts respecting that matter. 
Our reports contain numerous decisions up- 
on this question, and the rule approved in 
Morton v. Eeidorn often has been applied. 

Counsel for respondents, however, contend 
this principle applies only to what are term- 
ed "presumptions of fact," and not to "pre- 
sumptions of law"; that the presumption of 
Innocence Is one of law, and therefore out- 
side the rule. Frequently, in applying the 
rule, this court has, as in Morton v. Heidorn, 
pointed out that the "presumption" under 
consideration was a "presumption of fact" 
In other decisions it is stated the presump- 
tion is "disputable" or "rebuttable," as ap- 
pears from cases cited in Morton y. Heldom 
and cases they dte. In Ham v. Barret, 28 
Mo. 388, this court, however, held the rule 
applicable to all presumptions of fact, and 
h^ld that aU rebuttable presumptions are 
presumptions of fact. It thereby Included 
under the head of presumptions of fact what 
this court now more frequently denominates 
rebuttable or disputable presumptions of 
law. With this understanding of the differ- 
ence In terminology now and then, that deci- 
sion is authority against respondents' pres- 
ent position that the rule relator relies upon 
is inapplicable to a rebuttable presumption 
of law, as this court employs those terms In 
Its classification of presumptions. 

The doctrine written in Cornelius v. Cor- 
nelius, 233 Mo., loc. cit 36, 135 S. W. 65, et 
seq., directly supports respondents' conten- 
tion on this point No Judge concurred In 
that opinion in such manner that his concur- 
rence necessarily included bis agreement to 
the proposition that It was reversible error 
to refuse to tell the Jury there was a pre- 
sTunption in that case against malice. Wbat 
was said of that case in Knapp v. Knapp, 
183 S. W. 576, did not have reference to any 
question whether the presumption should be 
stated in Instructions. It must be confessed, 
however, that In numerous Instances this 
court has approved instructions, despite the 
presence of evidence on the point, Instructing 
juries that the law presumed this or that 
when the presumption was what we call one 
of law, though rebuttable. It is also true 
that there are many decisions (see briefs) in 
other jurisdictions holding It necessary that 
the jury be Instructed as to the presumption 
of innocence In civil cases in which crime is 
In issue. In these circumstances, if this 
court cannot, in a case like this, review on 
certiorari any holding not in conflict with 
our own decisions. It cannot be held the 
Court of Appeals erred In approving that 



t)ortl6n «f Ihstnictlon 2 'Mklcb inei^y told 
the Jury there was a presnmptloh of Inno- 
cence of ttime even In a dvil case. 

(b) The mle laid down in Morton v. Hel- 
dom, supra, ought not, In the writer's opin- 
ion, to be restricted to "presumptions of 
fact" 

[2-6] The presumption of innocence Is not 
in itself evidence, as this court, in effect, 
held in State v. Kennedy, supra, when It refus- 
ed to follow Coffin -V. United States, 156 U. 
S. 433, 15 Sup. Ct 394, 39 L. Ed. 481, where- 
in that presumption was held to be evidence 
for defendant, and a failure to declare the 
presumption to the Jury was, on that ground, 
held reversible error. The Coffin Case fre- 
quently has been criticised, and even the 
court which rendered it seems to have reced- 
ed, in part at least, from the position It took 
therein. The propriety, affirmed In State v. 
Kennedy, supra, of instructing on the pre- 
sumption of Innocence in a criminal case 
therefore depends upon something besides 
evidentiary force in the presumption Itself. 
This may be said to be the law's anxiety to 
present the defendant In such cases to the 
trial Jury in such manner that he shall not 
be handicapped by the Inference which might 
arise from his arrest commitment indict- 
ment etc. This reason is obviously Inap- 
plicable to an ordinary civil case, even thoti^ 
the commission of crime is In Issue. In snch 
case the presumption of innocence places the 
burden of proof upon the party alleging a 
crime was committed, and. In the absence of 
evidence of its commission, warrants a di- 
rection of a verdict against the charge of 
crime. That is usually and logically the sole 
effect of rebuttable presumptions of law, 
which generally may be defined as conclu- 
sions which, in the absence of evidence upon 
the exact question) the law draws from oth- 
er proof made or from facts judicially no- 
ticed, or both. The burden of prOof cast by 
such presumptions is satisfied by the adduc- 
tion of evidence sufficient to convince the 
jury that the probabilities of truth are 
against the party whom the presumption re- 
lieves of the burden of proof. The presump- 
tion itself is not evidence. It is not a thing 
to be "overcome" by evidence in the sense 
that it, of itself, adds anything to the 
strength of the evidence of the party invcA- 
ing it Despite the presnmirtlon, the party 
upon whom it casts the burden In a dvil 
case makes out his case when he adduces 
evidence proving his allegation of fact to 
be more probably true than Is the contrary. 
In argument the facts giving rise to the pre- 
sumption may be Invoked, and the legitimate 
Inferences from them employed to convince 
the Jury the evidence offered by the party 
having the burden of proof does not estab- 
lish the fact he ccmtends Is true. To say, 
however, in an instruction to a Jury, in the 
case of a rebuttable presumption, and when 
evidence has been Introduced upon the ques- 
tion, that "the law presumes" bo and so^ and" 



c^le 



Ho) 



WHITSSIDB T. OASIS CLUB 



27 



tbat sudi premimptlon "must be OTtrcome" 
or "orerUrnxwn" by ertdeoce, Is sometimes 
nseless, aometlmes prejudicial, and always 
lUogicaL As Buggerted under (a), there ate 
lUssourl decisions not In accord with tills 
coDdnslon. 

[1, 7] (c) In any event, bowerer, to instrtict 
in a dvll case. In whldi the defense is arson, 
that "in dvll suits (like this one) Just as in 
the trial of a person charged with crime, tn 
a criminal case, thk law presmues tbat the 
person charged with the willful burning of 
tlie property is innocent," is in contraTentlon 
of the rule laid down in the SothscUM Case, 
dted above.. The added clause tbat "the pre- 
somption continues until he is proven gulKy 
by a preponderance of the credible evidence 
in the case" does not, for the- reasons given 
hi the Rothschild Case and in Gay v. QtlU- 
lan, supra, cure the error ; nor was the error 
either invited or condoned by instruction 8 
given at defendant's request. This was the 
instmction referred to as "instruction 7" in 
the opinion of the Court of Appeals on re- 
bearing. As stated in that opinion, it is 
taken bodily, lees the added clause this court 
held erroneous, from Rothschild v. Insnr> 
ance Co., 02 Mo. loc dt. 368, 359. Tbat In- 
struction did not mention the presumption 
of innocence. It was designed to inform the 
jory as to the difference in the weight of 
evidence requisite to convict in a criminal 
case and to warrant a verdict in a civil case. 
Among other things, it specifically told the 
jnry that: 

"In civil qneetions like the present there is no 
laestion whether any crime has been committed. 
The qnestioo in this case is merely a question of 
(reater or leas probability, and the jury in or- 
der to find a verdict t(a &« defendant need not 
be ntisfied of the complicity of the plaintiff in 
t*"* bnrning in any or other way or with any 
different degree of satisfaction than if the ques- 
tion were an ordinary question in a civil case." 

That Instruction constltnted no invitation 
to the court so to instruct as to Impress the 
]nry that, in order to find for defendant on 
the issue of arson, they must look for "proof 
<rf a more conclusive character • • • 
than in ordinary dvil cases." This is .what 
we think the court did by giving instruction 
2 for plalntur. 

The record of the Court of Appeals is 
quashed. All concur, except BOND, J., who 
dissents. 



WHITESIDB T. OASIS CLUB, (No. 17891.) 

(Sapreme Court of Missouri, Division No. 1. 
June 2, 19ie.) 

1. BomfDABisa €=»14— Descbiptiow— Watek 

CorasM— 'Tbom" ob "To." 
Whether a description states that land ex- 
tends "to" a stream or "from" it is immaterial, 
rince both forms equally imply that it is in con- 
tact with the water course. 

fEd. Note. — For other cases, see Boundaries, 
Cent. Dig. H 102-107; Dec. IMg. <8=>14. 

For other definitionB, see Words and Phrases, 
Sirst and Second Series, From ; To.] 



2. BouRnABixs «=al4r-I>i8CBrPTiON— Wateb 
CouBSBS— "Lying Wbst ot a LiAKk." 
A description of land as "all the laud lying 

west of the lake" means the same as if it were 

"the lend bounded on the east by the lake." 
[Ed. Note. — For other cases, see Boundaries, 

Cent Dig. ${ 102-107 ; Dec. Dig. <8=>14. 
For other definitions, see Words and Phrades, 

First and Second Series, Lying.] 

8. Watebs ano Watkb CotfBSBS «=s>89— Con- 

VETANCE— USQXn Ao FiLVU. 

Whenever land is sold and conveyed as being 
bounded by a water course, the water course 
usque ad filum aqos is induded. 

[Ed. Note. — For other cases, see Waters and 
Water Courses, Cent Dig. §| 91, 92, 107 ; Dec 
Dig. «S989.] 

4. Landlobd and Tenant i8=»63{5)— Estop- 
pel TO Dent Landlobd'b Trnjs — Land Ex- 
cepted FBOU Lbase. 
The acceptance of a lease does not estop a 
tenant to deny the lessor's title to land express- 
ly excepted from the lease. 

[Ed. Note. — ^For other eases, see Landlord and 
;renBnt, Cent Dig. $ 175 ; Dec. Dig. <S=3>63(5).] 

Sk AnvEBSB Possession ®=»85(1) — HosnLrrr 
or Possession — Bitbden ot Pbooe. 
The burden is upon a claimant by adverse 
possession of land to which he has no color of 
title to prove actual, open, -visible, and adverse 
possession diiring the required period. 

[Ed. Note. — For other cases, see Adverse Pos- 
session, Cent. Dig. §8 498, 658, 857, 660, 668; 
Dec. Dig. (S=>85a).I 

6. Evidence i®=>(5,'>—PEE8TJia'Ti0N8— Knowl- 
edge OF Leoal TERirs. 

One is presumed to know the legal effect Of 
terms used. by him in describing Ills land. 

[Ed. Note.— For other cases, see Evidence, 
Cent Dig. i 85 ; Dec. Dig. <8=>65.] 

7. Advebse Possession €=366(2) — With In- 
tent TO Claim to Tbub Botjndabt Only- 
Effect. 

Where an adverse possessor limits his claim 
to the true boundary, his possession beyond that 
line, when ascertained, is subject to correction. 
[Ed. Note. — For other cases, see Adverse Pos- 
session, Cent Dig. {| 378-383; Dec. Dig. «=» 
66(2).] 

8. Advebse Possession «=»85(3) — Evidence 
OF Hostile Occupation. 

In ejectment for a slough, the fact that 
plaintiff had been accustomed at one time to use 
tie slough for pasturage by repairing his own 
and defendant's predecessor's fence on the high 
land on two sides and running a fence across 
the low ground to inclose it on the side left open, 
did not show assertion of title, but a mere neigh- 
borly arrangement 

[Ed. Note. — For other cases, see Adverse Pos- 
session, Cent Dig. g 688; Dec. Dig. «=>85(3).] 

9. Advbbsb Possession «s>50— Recoomition 
OF Tbue Owneb's Title. 

In ejectment for a slough, deed from plain- 
tiff of a right of way across his land running 
from the "center" or "middle" of the slough was 
a recognition by him of defendant's title to the 
slough to the center line, defeating plaintiff's 
claim of adverse possession. 

[Ed. Note.— For other cases, see Adverse Pos- 
session, Cent Dig. §| 255-261; Dec. Dig. «=» 
50.] 

Appeal from Circuit Court, Montgomery 
County; James D. Bamett, Judge. 

Action by Josiab Whiteside against the 
Oasis Club. From a judgment for defendant, 
plaintiff aKPeals. Affirmed. 

»rar other okMs see tune topic and KBT-N DUBBB la an Key-Numbered DlgaU and InilMei*^^^ ^^ 



Google 



28 



187 SOUTHWB5STEBN KEPOBTEB 



(Mo. 



Thlg Is a Bnlt In ejectment Instituted May 
15, 1012, In tbe Lincoln county circuit court, 
from which It was removed, on plaintiff's ap- 
plication, by change of venue to Montgomery 
county, where it was finally tried. Its ob- 
ject Is to obtain possession of premises de- 
scribed in the petition as follows: 

"All that part of the northwest fractional 
quarter of section 24, township 50, range 2 east, 
which lies east of the west bank of King's Lake, 
and also that other part of the said northwest 
fractional quarter of section 24, township 60, 
range 2 east, which lies south and east of the 
middle or center of Fish slough as now located 
and north and west of the south and east bank 
of said EHsh slough, all of said iands being sit- 
uate in the county of Lincoln and state of Mis^ 
souri." 

The situation is as foDows: On August 18, 
1884, David S. Jewell and wife, then in pos- 
session, conveyed to the appellant lands de- 
scribed in the deed as follows: 

"Forty acres, northwestern part of section 24, 
township 60, range 2 east, Lincoln county, Mis- 
souri, bounded on tbe north by the southern line 
of survey No. 1732, on the east by King's Lake, 
on the south by line rnnning through the center 
of section 24, and on the west by the line be- 
tween section 23 and 24, all of said lands lying 
in township 50, range 2 east, formerly conveyed 
to David S. Jewell by H. H. Morris, except, 
however, 4 acres off of said 40 acres sold and 
conveyed to John L, Stewart." 

Tbe deed referred to in tbe last clause of 
the foregoing description was made April 
30, 1866, by John A. Sltton, whereby he con- 
veyed to Stewart a tract described as tol- 
lows: 

"All that piece or parcel of land, being and 
lying west of King's Lake, and known as a piece 
lying south and east of what is known as Fish 
slough, a part of the northwest fractional quar- 
ter of section 24 in township 50, range 2 >ea8t, 
Lincoln county, Missouri, containing 4 acres, 
' more or less." 

King's Lake is a slough or stream 1,000 
or 1,200 feet wide running through the frac- 
tional quarter in a direction west of north. 
The water of streams emerging from tbe 
bluffs to the north and west flows through it 
to the Mississippi river. ' The fraction seems, 
upon the survey in evidence, . to be divided 
by a line in the lake running substantially 
north and south, and leaving something over 
52 acres in the east half and 46 acres in the 
west half, which latter comprises the tracts 
conveyed to appellant and Stewart; the lat- 
ter of which is now owned by the respondent, 
an incorporated hunting and fishing club 
which has constructed upon it extensive dub- 
bonses for tbe use of Its members and boat- 
houses and floating docks extending into the 
water of King's Lake on its east front, and 
of Fish enough, which constitutes Its north 
and west boundaries. The area of water oc- 
cupied by these on the King's Lake front and 
extending to the middle of the channel on the 
Fish slough front constitute the property de- 
scribed in the petition and sought to be re- 
covered In this suit. 

Fish slough is a stream of water which en- 
ters the fractional quarter at Its southwest 



comer in a norOrwesterly.dinctliHi, carving 
toward the east Hind passing across It in an 
easterly direction, discharging its waters into 
King's Lake and leaving a part of the frac- 
tlMial quarter upon its soath and east, and 
west of King's Lake; This is the Stewart 
tract now occupied by respondent 

The appellant, under date of December % 
1897, executed to one Orlmea an instrument 
which calla itself a "hunting and fishing 
lease" by which he leases to tbe latter for 
the term of ten years from July 15, 1907, 
"the ezdnsi've right to hunt and fisb and 
seine over all the lands and waters now own- 
ed by the party of tbe first part," except as 
fcAlows: 

"Party of first part and his family shan have 
the rigat to hunt and fish and also to seine the 
lake covered by this lease and take all fish 
caught except the game fish known as croppy, 
bass, perch and Jack Salmon, which shall l>e tak- 
en tenderly and carefully and put in the fish 
park belong to part of the 2nd part and party 
of the first part shall have bis son, Wm. or Wal- 
ter or his self to attend to same in good shape 
and party of the first part and his family shall 
have the right to fish with hook and line in 
the fishing park belonging to party of the 2nd 
part" 

It further provided that the lease eOiould 
be determined at any time on all -or any part 
of said land or waters Which tbe party of 
the first part shall Wish to Sell or dispose of 
upon one year's notice. Appellant says in 
his testimony that this lease was made to 
replace one made earlier in the year and 
lost 

Evidently as a part of the same transac- 
tion, he made on November 20tb, of the same 
year, a cobv^ance to Qrimes, who had then 
acquired the Stewart tract of "a strip of 
land wide enough for a, private roadway not 
to exceed 20 feet," commencing in the center 
of Fish Edough and running northerly along 
the west bank of King's Lake through said 
section 24 and lot 11 of Purvey Na 1782, as 
near the edge of the bank as possible or prac- 
ticable, and thence westerly to the railroad. 
This strip was to be used as right of way 
for sudi road only, and appellant was to 
have free access to it from his own land 
through gates to be constructed by Grimes 
for that purpose. Later (September 30, 1899) 
another quitclaim deed was made to the 
same strip in which the right of way along 
the lake shore was fixed definitely at 20 feet, 
but no other change was made in this part 
of the road. 

Upon the execution of the original lease 
above mentioned Mr. Grimes began to make 
Improvements on his own land In line with 
Its purpose. He employed appellant to as- 
sist him in building a dam across the mouth 
oif Fish slough so that the waters of the 
latter could be maintained at a comparative- 
ly constant stage against floods from the 
river through King's Lake on one side and 
failure of tbe - supply from the hills from 
which the slou^ was fed, and in that way 
«stabllshed and maintained what Is called lir" 



c^le 



Vai 



WffJWBSWV T. OASIS G(LUB 



S» 



the lease the "Fish Park." Oilmes paid tbe 
aiq>eUaiit |285 for this yrork. 

Tbe lespondent succeeded Grimes to tbe 
possession of tbe Stewart tract, including tbe 
water front improvements we bare men- 
tioned, and at the expiration of the Grimes 
lease in 1807 appellant executed to it an in- 
stnunent of writing whereby he— 
"demised and leased to the said party of the 
wcond part, all those premises lying and being 
in tbe county of Lincoln and state of Biiasourf, 
known and described as follows, to wit: • * • 
38 acres, more or leas, being all of the N. W. 
fractional quarter of section 24, except 4 acres, 
heretofore deeded by John A. Sitton to J. It. 
Stewart by deed recorded in Boole T. at page 143 
in the recorder'a office of Lincoln county, Mis- 
Eonri, for a term beginning July 15, 10u7, and 
ending the 1st day of May, 1008." 

The Instrument then proceeded as follows: 

"The party of the second part and members of 
thar banting and fishing dub are to have the ez- 
dnsive privilege of hunting and fishing on said 
land and water thereon at all times of the 
rear. It is agreed by the party of the second 
part that the party of the first part and his fam- 
ily shall not be debarred from hunting or fishing 
on this land. • • • 

"It is further agreed by the party of the sec- 
ond part that if tbe aaid party of the first part 
vishea to drain or improve the aforesaid land, 
that said party of the second part will in no wise 
object. 

"And it is fnrther agreed by the said party 
of the second part that they will be responsi- 
ble for any damage done to the crops by himself 
or members of the club while hunting on this 
land; and it is further agreed by said party of 
the second part that said party of the first part, 
or Ms legal representatives, shall be entitled to 
the possesion of said premises, and possession 
thereof shall be peacefully surrendered by said 
party of the second part on demand therefor, 
and will peaceably deliver up to the said party 
of the first part, bis heirs, executors, administra- 
tors and assigns, at the termination of this 
lease." 

Upon tbe execution of the Jewell deed In 
1SS4 the appellant took possession under it. 
Flab slongh, where it had cut its way into 
King's Lake, had high and almost perpendic- 
ular banks, and while tbe south bank, which 
the stream hugged closely, continued steep 
to the west line of tbe section, it fell off into 
a flat on the north side, leaving some 3 acres 
between the stream at its ordinary stage and 
the high bank. It was the lowest of this 
ground that Mr. Grimes utilized in the for- 
mation of tils fish park. The Stewart tract 
had been occupied and cultivated for a long 
time, and there was, when appellant pur- 
chased, an old worm fence along the high 
bank on that side which had fallen into a 
state of more or less decay, and another old 
fence on the high bank at the north side, 
whidi Inclosed on that side tbe cultivated 
lands of the Jewell tract The flat ground 
between the two fences, both of which the ap- 
pellant repaired, was used by him for pas- 
tare. How long this continued does not ap- 
pear from tbe record, but it does appear that 
the south fence was allowed to decay and 
disappeared. 

The sole issue which the court permitted 
to go to the Jury waa whether or not the ap- 



pellant had acquired, ttde to tbe property 
sued for by adverse possession. By giving 
and refusing instructions which we will no- 
tice further in the opinion, if necessary, it 
held that be had not shown a paper title 
on which he could recover, and that tbe re- 
spondent had not by reason of the license to 
itself or to Grimes acquired its possession 
under such circumstances as to estop it from 
availing Itself of ^at weakness in Ms case. 

R. H. Norton and Avery, Toang, Dudley & 
Killam, all of Troy, and Nowlln & Hughes, 
of Montgomery City, for appellant. Frank 
Howell and Sutton & Huston, all of Troy, 
Geo. B. Webster, of St. Louis, and Ball & 
Ball and E>. Rosenberger & Son, all of Mont- 
gomery City, for respondent 

BROWN, O. (after stating the tacts as 
above). 1. The first question which presents 
itself relates to the Jewell deed which con- 
stitutes the foundation of the appellant's 
claim of title. Whatever possession he may 
have had he admits to have been taken and 
held under this deed, and the possessory acts 
upon which he relies must be considered in 
connection with its terms. 

This deed purports to convey 40 acr^ of 
tlie northwest part of section ^ bounded on 
the north by survey No. 1732, on the east by 
King's Lake, on. the south by the center line 
of the section, and on the' west by its west 
line, except 4 acres formerly conveyed to 
Stewart According, to this description it has 
a frontage on King's Lake throughout the ex- 
tent of its eastern boundary, which can only 
be ascertained in connection with the east- 
em boundary of the Stewart tract which is 
expressly excepted from the general descrip- 
tion, and which also fronts on E^ing's Lake 
throughout its eastern boundary from the 
mouth of Fish slough south to the quarter 
section line, so that the appellant is not nor 
does he claim to be, a riparian owner. His 
claim under the Jewell dee4 is limited at thi» 
point to the water In front of respondent's 
land. Nor is there any evidence in the rec- 
ord that he was ever in actual possession of 
this part of the water sued for. His claim as 
well as his title depends entirely upon the 
question whether or not it is Included within 
the terms of his deed. The Stewart tract, 
excluded from the land conveyed by the 
Jewell deed, Is described in substance as all 
that part of the northwest fractional quar- 
ter of section 24 b^ng and lying west of 
King's Lake and south and east of Fish 
slough. If this description refers, in naming 
these water courses, to the middle of the 
water which flows through them, then none 
of the land sued for is conveyed by the Jew- 
ell deed, but is expressly excepted by Its 
terms from its operation. 

[1, 2] It can make no difference whether 
we say that one's land extends to a stream 
or from It; both forms equally imply that 
It Is in contact with the water course^ 



Jniy Google 



se 



187 SOUTHWESTERI* RBPOHTBR 



(Mot 



any attempt to distlngalSh between them In 
this respect conld only result In confusion 
and uncertainty. That the expression "all 
the land lying west of the lake" means the 
same as If it were said "the land bounded on 
the east by the lake" Is so evident that to 
make a distinction between them would be 
to set a trap in the path of the unskilled In 
the anomalies of the law; yet it is upon such 
a distinction that much of tbe plaintiff's ar- 
gument stands. 

[3] It has been said that a water course is 
considered the safest boundary of real estate,- 
as it is a natural boundary; and the In- 
variable construction in this country has 
been, as it has been for centuries in England, 
that whenever land is sold and conveyed as 
being bounded by a water course, the water 
course usque ad fllum aquse in included. 
Angell on Water Courses, { IL And the same 
author (section 9) says: 

"The only mode by which a right of property 
in a water course, above tidewater, can be with- 
held from a person who receives a grant of the 
land, is by a reservation directly expressed or 
clearly implied to such effect" 

And in South Carolina It was held that 
where a survey called for "Dean's swamp" 
as a bonndary, the creek or main stream 
of the swamp vras intended, and not the 
margin of the marshy land. - Felder v. Bon- 
nett, 2 McMall (S. G) 44. 37 Am. Dec. 645. 
The rule is stated by Oould on Waters (3d 
Bd.) S 196, as follows: 

"In the case of nantidal waters, also, a deed 
which describes the land as bounded by the wa- 
ter conveys prima facie as far as the grantor 
owns. Thus the term 'river,' when employed to 
designate a boundary by land owners whose title 
extends usque ad Slum aquse, means in law the 
center of the stream." 

In this same connection it is said by the 
distinguished author that the deed is taken 
most strictly against the grantor in the ap- 
plication of this rule, and courts will not 
favor the presumption that he has retained 
the title to the bed of the stream. Devlin 
on Deeds, $ 1023. And in Benson v. Morrow, 
61 Mo. 350, this court said: 

"In all cases, therefore, where the river itself 
is used as a boimdary, the law will expound the 
grant as extending ad filum medium aquae." 

While the courts and text-writers recognize 
the utility of the principle that the waters of 
nonnavigable streams should be available to 
the owners and occupants of lands In which 
they have been placed by nature, the doctrine 
stands firmly on the simpler ground that 
when we speak of a stream, without further 
explanation, we refer to it as a whole, as to 
a stake or stone, and nature has fixed its 
medial line where, notwithstanding the fluc- 
tuation of its waters, they steadily flow to 
the last. The application of the same gener- 
al rule to this case results in the conclusion 
that the Stewart deed, which was adopted 
by the parties to the Jewell deed as a part 
of the description of the land conveyed by 
the latter, will, for that purpose, be presum- 



ed to have conveyed to the grantee therein 
the water front in King's I/ake'and Fish 
slough now in controversy, and was therefore 
excepted out of the Jewell deed. Neither 
party having attempted to show title in the 
grantors in either of these two deeds, they 
stand upon an equal footing in that respect, 
so that It Is unnecessary to determine the 
effect of such failure so far as it might af- 
fect the presumption we have been consider- 
ing. 

[4] 2. The appellant contends that the re- 
spondent is estopped from contesting the 
right of the plaintiff to the possession of the 
premises sued for by the acceptance of the 
hunting and fishing lease to respondent. 
What we have already said In the preceding 
paragraph seems to dispose of that question, 
for the license, so far as it can affect the 
rights of the parties in this case excepts out 
of its proviBlons the Stewart lands as de- 
scribed in the Sitton deed, and which we 
have held to extend to the "miudle or center" 
of Fish slough as well as over the lands 
shown to have been occupied by the respond- 
ent in King's Lake. The lease Itself limits 
the extent of the respondent's possession un- 
der it 

[B-7] 3. The appellant being without color 
of title on which to rest his claim by ad- 
verse possession, the burden is upon him 
to sustain it by proof of actual, open, visible, 
and adverse possession during the period re- 
quired by law to bar the owner of recovery. 
As a standpoint from which to consider the 
evidence upon this point we must take not 
only his statement as a witness that he 
made no claim other than under the Jewell 
deed, but also the formal statement of his 
counsel upon the trial as follows: 

"We are not claiming in this suit anything em- 
braced in the 4 acres more or less. We are 
claiming under the Jewell deed which excepts 
this 4-acre tract" 

Giving these words their full and ordinary 
significance, Uiey would make an end of this 
controversy for, as we have already said, the 
boundary of the Stewart tract by the terms 
of the deed extends ad filum aquae, and the 
appellant, in adopting it as a part of the 
description of his own land, will be prefum- 
ed to have known the legal effect of its 
terms. His claim being limited to the true 
boundary, his possession beyond ttiat line 
would be subject to correction upon ascer- 
taining It Foard V. McAnneUy, 216 Mo. 871, 
114 S. W. 990, and cases cited. 

[S, 9] Removing our standpoint to the posi- 
tion appellant seems to occupy in this suit, 
and admitting for this purpose alone that a 
possession taken under a claim of right 
founded upon the mistaken interpretation of 
his own deed might ripen into title, we will 
examine the acts which are relied on as an 
open assertion of such a claim. He had a 
farm with cultivated land north of th( 
slongli, with a fence oa the liigh bank 



Sfogle 



Mo.) 



BTJCKIiET T..MONOK 



81 



closiiig It Between-thla ftnce and the. bIoiu^ 
was a low flat subject to overflow, whlcb 
he desired to clear and use for pasture. On 
tbe blgti banlc soutb of the slough was the 
land of the Stewarts, his neighbors, who had 
an old and somewhat dilapidated fence along 
the bank of the slongh so close as to leare 
DO land susceptible of profitable use between 
It and the water. The appellant, npon ac- 
quiring his land, repaired this fence, built a 
short fence across the west end of the open 
strip, thus connecting his own with the 
Stewarts' fence, cleaned ont the flat, and 
pat In his cattle. The whole pasture, which 
waj fully inclosed by perhaps 200 feet of 
fence, had an area of only abont 3 acres. 
There is no evidence in the record that he 
ever asserted title to the Stewart fence, If 
the facts just stated did not constitute such 
an assertion. It strikes ns as a neighborly 
arrangement by which one was assisted in 
maintaining his worm fence, while the other 
was enabled to ntillze a strip of alluvial land 
upon which iwrlodical overflows made it im- 
practicable to maintain a fence of his own. 
The record does not show how long this 
arrangement continued. It does, however, 
show that it had ceased at the time the 
banting and fishing lease was made with 
Grimes, while he was In possession of the 
Stewart land in 1897. It may be that the 
appellant did not recognize the interest of 
Grimes in the water of the slough by the 
constmctlon of the Joint Fish pond for 
which he received $2g5, bnt he did recognize 
it when he conveyed him the right of way 
for a road to the railway. The first of these 
deeds is dated November 20, 1897, about the 
time the dam was being constructed by ai>- 
pellant, and ran from the center of "Fish 
or (Stewart) slough" and thence north along 
the west bank of King's Lake, whUe the sec- 
ond deed, dated September 30, 1899, after 
the work was all completed still recognized it 
by beginning 'in the middle (the center) at 
mouth where It enters into King's Iiflke, of 
what is known as Stewart or Fish slough." 
It is inconceivable that these deeds should 
have been intended to bar the access of the 
grantee to the railroad by establishing Its 
beginning half the width of the slough north 
of his land. We can construe it in no other 
way consistent With Its evident purpose than 
as an acknowledgment then made by the 
parties that the line between them was the 
middle of the slough at its mouth. We do 
Dot think that there Is anything in the evl- 
lence tending to show that the appellant ever 
took possession of that part of Flsb slough 
lowr In controversy under claim of owner- 
itaip. S^or this reason it is unnecessary to 
liscoss the evidence relating to the physical 
Jiaracter of snch alleged possession, or to 
review the instructions by which it- was sub- 
nitted to the jury. Their verdict for the 
lefendant being tHe only one which would 



have b«m permitted 4o stand mider the evi- 
dence, the Judgment entered upon it ia af- 
firmed. 

RAILEY, C., concurs. 

PER CURIAM. The foregoing opinion of 
BROWN, C, is adopted as the opinion of the 
court. All concur. 



BUCKLEY et al. v. MONCK et aL 
(No. 175Q1.) 

(Supreme Court of Missouri, Division No. 1. 
June 2, 1916.) 

1. CHABrriES «=s>47— Chabitabije TBtrsr— Ju- 
dicial Appointment of Trtustee. 

A charitable trust being lawful and suffi- 
ciently specific and definite to enable the court 
to exectite it, it will name a trustee; the will 
having failed to do so. 

[EkI. Note.— F<Mr other cases, see Charities, 
Cent. Dig. J 85; Dec. Dig. «=>47.] 

2. Gbabitikb ^=>4S, 47— Ohabitablb Tbubt— 
Cebtaintt as to Fukposs. 

If the use is so expressed in a charitable 
trust that the court ma^ Jud^ of the donor's 
motive so as to give specific effect to bis general 
directions, he failing to name a trustee, the 
court will appoint one and administer the trust. 
[EM. Note.— For other cases, see Charities, 
Cent. Dig. f§ 83-90; Dec. Dig. <3s»43, 47.] 

3. CHABrms «=s>34— Chabttabub Tbust— In- 

DEFIKITENESB AS TO RTCIPIENTS. 

IndefinitenesB as to the individual recipients 
of the bounty is one of the elements of a chari- 
table trust; otherwise it would be a private 
trust 

[Ed. Note.— For other cases, see Charities, 
Cent Dig. U 75-77; Dec. Dig. <g=»34.] 

4. Chabitim «=»10 — Chabitabij; Tbubt — 
Cbkation. 

Provision of a will that land or its value be 
put on interest for tlie use of worn-out preach- 
ers In Methodist Episcopal Church in North 
Missouri Conference is sufficient In every respect 
to create a valid charitable use. 

[Ed. Note.— For other cases, see Charities, 
Cent Dig. { 34; Dec. Dig. <©=»10.] 

6i Ejectment *=»9(2)— Kiqht or Plaintift 

TO Possession. 

The heirs of testator having no beneficial in- 
terest or possessory title in or to land, as to 
which testator created a valid charitable trust 
without naming a trustee, they are not entitled 
to recover in ejectment, even if the incorpora- 
tion of an association, the members of which are 
rightfully in possession, executing the trust un- 
der tlis direction of the court be void. 

[Ed. Note.— For other cases, see Ejectment, 
Cent. Dig. 8 17; Dec. Dig. <S=»9(2).] 

Appeal from Circuit Court, Harrison Coun- 
ty ; J. W. Wanamaker, Judge. 

Action by R, R. Buckley and others against 
J. Clarence Monck and others. Judgment 
for defendants, and plaintUfs appeal. Af- 
firmed. 

Barlow, Barlow & Kautz, of Bethany, and 
J., W. Perry, of Kansas City, Kan., for ap- 
pellants. A. S. Cummiug, of Bethany, and 
Kendall B. Randolph and Lewis F. Randolph, 
both of St. Joseph, for respondents. 



^sForothar eases seo ■■m* topic &nd KBY-NUMBilR In all Kejr-Numbersd DtcMts and Indezas 



r gitized 



5byGopgle 



92 



187 SOU'rHWJHJSTBaRN OBPOHTER 



(Mo. 



BROWN, O. Tbls !s a salt In ejectment 
for 310 acres of land In Harrison county, 
which Is described in the record as the Buck- 
ley home farm. It was Instituted December 
16, 1909 by petition In the usual form. The 
plaintiffs are all the collateral heirs of A. O. 
Buckley, deceased, who died in August, 1887, 
without having had any children, and leavUig 
a will devising all the land in controversy by 
the following paragraph: 

"I bequeath first to my beloved wife Malinda 
Buckley home farm two hundred acres, describ- 
ed 160 acres S. W. qr. of section twenty and 40 
acres N. E. of S. E. of section (19) and the B. 
^ of the east half of southeast fourth of the 
southeast quarter of section No. (22) in Twp. 
66 range No. 23 containing 10 acres to have and 
to hold during her natural life at her decease the 
said land mentioned above or the value thereof 
to be put on interest for the use of worn out 
preachers in M. E. Church in North Mo. Con- 
ference." 

The widow dl«d in September, 1909. De- 
fendant Board of Stewards of the Missouri 
Conference of the Methodist Episcopal Church 
was a permanent committee of that confer- 
ence and was on September 9, 1907, Incorpo- 
rated by pro forma decree of the circuit court 
for Clinton county. Mo., as a benevolent cor- 
poration by the name and with powers as 
they had ezlated theretofore, which were as 
follows: 

"Sec. 1. To incorporate under the laws of the 
state of Missouri as a benevolent corporation. 

"Sec. 2. To determine, subject to the action 
of the aforesaid annual conference, who are con- 
ference claimants of the aforesaid Missouri Con- 
ference as recognized in and defined by the gov- 
erning rules and discipline of the Methodist 
Episcopal Church. 

"Sec. 3. To recave, hold, and disburse any 
and all funds received by the aforesaid annual 
conference for distribution in aid of the support 
of conference claimants of the aforesaid Mis- 
souri Conference, as recognized and defined by 
the governing rules and discipline of the Meth- 
odist Episcopal Church, and as determined as 
aforesaid. 

"Sec. 4. To receive, hold, and distribute any 
and all funds coming from whatever sources. In- 
tended for distributum in aid oi the support of 
conference claimants as aforesaid. 

"Sec. 5. To receive and hold as trustee any 
and all trust funds, including real estate and all 
forms of personal property donated or otherwise 
acquired, which according to the terms of the 
gift or grant shall be required to be held in 
trust for the purpose of producing an income, or 
for any other purpose whatever, for the benefit 
of such conference claimants as aforesaid, to in- 
vest or otherwise administer such funds, and to 
do and perform any and all things necessary to a 
proper performance of such trusts. 

"Sec. 6. To receive and hold as trustee or oth- 
erwise any and all real estate and personal prop- 
erty subject to the payment of rents or annui- 
ties thereon, aa may be granted, devised, or be- 
queathed for the benefit of the conference claim- 
ants as aforesaid, and to pay such rents and an- 
nuities thereon as may be required by the terms 
of such grant, devise, or bequest; provided that 
this association deems the acceptance thereof ad- 
visable. 

"Sec. 7. To sell, dispose of, and execute stdta- 
ble deeds of conveyance and bills of sale or as- 
signments of any property received or held by 
this association in any manner and for any pur- 
pose herein specified, the alienation of which 
shall not have been prohibited by the terms of 



the grant under iriddi ft AM hare been re- 
ceived. 

"Sec. 8. To administer, hold, invest, or dis- 
tribute any and all funds coming into the bands 
of this association ft>r the benefit of the afore- 
said conference claimants in such manner aa 
may be prescribed by by-laws. 

"Sec. 9. To decline any gift or grant of any 
fund or property incumbered with any provision 
for the administration thereof which may be 
deemed contrary to good morals or the general 
policy of the Methodist Episcopal Church. 

"Sec. 10. To adopt a code of by-laws provid- 
ing for the conduct of the business and affairs of 
this association and the administration, invest- 
ment, custody, and distribution of any and all 
funds coming into its hands not inconsistent 
with the provisions of these articles, or the dis- 
cipline or general pohcy of the Methodist Epis- 
copal Church." 

The territory of Missouri for the purpose 
of church government is divided by the Meth- 
odist Episcopal Church into two conferences, 
the St Louis Conference, which includes that 
part of the state south of the Missouri river, 
and the Missouri Conference, which includes 
the part of the state north of the Missouri 
river. The latter is frequently and perhaps 
usually called the North Missouri Confer- 
ence. The governing code of the church is 
the "Discipline," which designates as "con- 
ference claimants" those preachers who have 
failed to receive adequate support in their 
charges or other work, or are disabled or 
superannuated, with their wives, widows and 
children and, of these, disabled and super- 
annuated preachers are designated in the 
discipline as "worn-out preachers." A list of 
all conference claimants Is kept in the rec- 
ords of the annual conierence, as these local 
or state conferences are called in distinction 
from the general conference, or governing 
body of the whole church in the United 
States; and at the time of the trial there 
were 26 worn-out preachers in the Missouri 
Conference. When thia suit was instituted, 
and at the time of the trial, the defendant 
Mouck was in possession of the premises as 
tenant of the defendant Board of Stewards. 

At the conclusion of the ' testimony the 
court, at the request of defendants, found as 
follows: 

"That said corporation named Board of Stew- 
ards of the Missouri Conference of tihe Metho- 
dist Episcopal Church is not a religious corpora- 
tion, but is a charitable organisation for the pur- 
pose of administering charity for the benefit of 
those dependent upon said conference. 

"That said Board of Stewards of the Missouri 
Conference, Methodist ESpiscopal Church, are 
lawfully in possession of said real estate as 
trustee aa aforesaid, by and through its said 
tenant, and are entitled to hold same and admin- 
ister same for the benefit of the worn-out 
preachers aforesaid, and that the title thereto is 
vested in them." 

It thereupon rendered Judgment for the de- 
fendants, and the questions so raised have 
been properly saved and brought to this court 
for review. The appellants state their case 
here as follows: 

"1. The trust attempted to be created in the 
will of A. G. Buckley b^ the words, 'at her de- 
cease the said land mentioned above or the value - T ^^ 
thereof to be put on interest for the use cd. worn- ^ I v 



Ma) 



BUOKLBTT ▼. MONCK 



83 



oat preadien In M. B. Ohnreh In Nortli Mo. 
OtiofereDce,' is not valid, becauM (a) it is vague, 
indefinite, and uncertain, and 'there was no trus- 
tee named or indicated in said devise or in said 
Til] to talte the title to said property or to ad- 
nuiUBter said trost or to deriKnate or select or 
ucertain the beneficiaries of said pretended 
tmst, noT waa there any plan, scheme, or man- 
aer of executing or carrying out said pretended 
trart provided for or indicated in said devise or 
in «aia wiU. (b) Even if it be conceded that the 
tbove-quoted clause would create a valid trust 
if a trustee had been named, notwithstanding 
tiat there was no such orffanization as the 
North Missouri Conference, yet, when no trustee 
is named who coald select or determine the bene- 
fidaries. and no plan pointed out in the devise 
for determining the beneSdaiies and administer- 
ini the trust. It is void. 

"2. The defendant corporation, the Board of 
Stewards of the Miasonri Conference of the 
Metiiodist Episcopal Church, is clearly a relig- 
ious rarporation within the meaninK of section 8 
of article 2 of the Constitution of Missouri, and 
therefore the finding and judgment of the court, 
that the title to the land in controversy is vested 
in it, is erroneous, and should be reversed." 

[1] 1. The principal and controlling qne»- 
Uon In tbifl case Is, did the will of Bnckley 
create a yalld charitable trust? The general 
mle which. Independently of statutory chang- 
es, la applied by courts of eatilty in most 
common-law jurisdictions, is that: 

"It the object of a charitnble trust is lawful 
ud sufficiently specific and definite to enable the 
conrt to execute it, it will not be permitted to 
fail for want of a trqstee competent to take, but 
a court of equity, by its general inherent juris- 
dirtion over charitable trusts, will appoint one." 
5 R. C. L. 315, and cases dted. 

And in Sdunldt t. Hess, 00 Mo. loc. dt 695, 
It b said that: 

"Although * • * there was no one in esse, 
at the time of making the donation, capable of 
being the recipient of the trust, yet the use being 
a charitable one, a court of equity, having as- 
certained the intent of the grantor, will not al- 
low the grant on that account to tail, but will 
Re to its tf ectuation." 

As we said in Hadley v. Foniee, 203 Mo. loc. 
dt 427, 101 S. W. 69, 14 U K. A. (N. 8.) 40, 
gifts to charitable uses have always received 
favorable consideration In this court. In pur- 
suance of this policy, where no trustee ca- 
pable of taking Is appointed In a charitable 
devise or beqnest, the principle so often Invok- 
ed by courts of equity. In the exercise of their 
jarlsdlction over trusts and equitable tises 
Is brought to Its aid, and the heir at law or 
executor, as the case may be, holds the legal 
tiOe to the property subject to the use; and 
a trustee may be appointed by the court 
Brown V. Kelsey, 2 Cush. (Mass.) 243, 230, 
251; Wlnslow v. Cummings, 3 Cush. (Mass.) 
358; Washbnm v. Sewall, 9 Mete. (Mass.) 
280; Bnrbank ▼. Whitney, 24 Pick. (Mass.) 
148, 35 Am. Dec '312 ; Grand Prairie v. Mor- 
gan, 171 IlL 444, 40 M. K 616; Hoeffer t. 
Clogan, 171 111. 462, 472, 49 N. E. 527, 40 L. 
B. A. 730, 63 Am. St. Kep. 241 ; Hood ▼. Dor- 
er, 107 Wis. 149, 82 N. W. 546. The facts in 
the case last cited are so similar to these as 
to give it peculiar Interest in this connection. 

The principle, upon which these nakied uses 
tie administered directly by the courts of 

i87aw..-a 



equity in this conntry, is Ulostirated in the 
doctrine of cy pres, by which the application 
of the fund is taken up by the court after the 
powers of the trustee have been proven inade- 
quate. While the specific trust has failed 
through the lack of prophetic vision in its 
creator, the charitable purpose, whioh had its 
birth in the conscience of the founder, re- 
mains, and appeals to equity to prevent the 
defeat of the benevolent intention, which oft- 
en originates In a moral Impulse higher than 
the origin of mere municipal law. Catron v. 
Scarritt Collegiate Institute, 264 Mo. 713. 176 
8. W. 671; LadUand v. Walker, 161 Mo. 211, 
52 8. W. 414. In the case first cited it is 
said that this doctrine, whereby the courts of 
equity approximate the intention of the 
founder of a pnbUc charity, is universally 
applied in Missouri and other states. An- 
other high authority (Bonv. Law Die. tit. 
Cy Pres), accurately defines the principle as 
"the rightly liberal rules of OHistructlon to 
deal with a trust having a designated partic- 
ular purpose, thongh-in general terms, and 
enforce it within the limits of such purpose, 
supplying the trustee if necessary," citing 
Tlncher v. Arnold, 147 Fed. 666, 77 C. C. A. 
649, 7 L. R. A. (N. S.) 471, 8 Ann. Gas. 017; 
Harrington v. Pier, 105 Wis. 485, 82 N. W. 
345, 60 liL B. A. 807, 76 Am. St Bep. 924. 

[2, 3] 2. It is not every attempted devise or 
bequest to charitable uses which courts of 
equity will directly administer. For Instance 
it will not substitute Its own jurisdiction for 
the personality of the testator, by executing 
a devise to "chartty" or to promote the cause 
of "charity" generally. It Is plain that in 
such a case the doctrine of cy pres can- have 
no application, because it covers the entire 
field of charitable activity, and to be as near 
as possible to the thing expressed must stlU 
be outside It. Nor can the court administer 
such a discretion generally, for It might carry 
it into fields which It might consider appro- 
priate objects of public aid and encourage- 
ment, but .which the testator might, in his 
lifetime, have abhorred, as Involving personal 
or public wrong or, If religious, mortal sin or 
spiritual degeneration. It Is impossible that 
any human charity should cover the entire 
field of charitable activities including as it 
does the things that proceed from the love of 
Qod as well as those that proceed from the 
love of his sentient creation. In a legal sense 
it is a "gift to be applied, consistently vrith 
existing laws, for the benefit of an indefinite 
number of persons, either by bringing their 
minds or hearts under the influence of educa- 
tion or religion, by relieving their bodies 
from disease, sufferli^, or constraint by as- 
sisting them to establish themselves In life, 
or by creating or maintaining public build- 
ings or works, or otherwise lessening the bur- 
dens of government." This definition, for- 
mulated by Mr. Justice Gray In Jackson v. 
Phillips, 14 Allen (Mass.) 556, has been adopt- 
ed by a multitude of authorities, many of /^^ T 
Which will be found coUected in 6 B. C. £>. ppby VjOOQ IC 



S4 



187 SOUTHWSSXBBN lUBPORTER 



CUo. 



291, 292. In thdr desire to preserve these 
public benefactlotis the conrts bave uniform- 
ly beld that, alttaongh they be ever so general 
in their nature, if a trbstee is appointed on- 
whom the donor confers bis right to select 
from them the real objects of his bounty, the 
trust will be upheld. Although no trustee be 
appointed, if the use is so expressed that the 
court may judge of tbe motive which actuat- 
ed the donor so as to give specific effect to 
his general dlrectiona, a trustee will be ap- 
pointed and the trust administered by the 
court In such case it is not necessary, nor 
is it possible, to designate the individual re- 
dpients of the bounty, because the benefac- 
tion would then cease to be a charitable use 
and become a private trust Indeflniteness in 
this respect is always held to be a necessary 
element of a diaritable use. Illustrating this 
point with the case in hand, had the gift been 
to a trustee for the use and benefit of the 26 
worn-out preachers that were on the rolls of 
the Missouri Conference by name, it would 
have ceased to be a charitable use and would 
have become a private trust It is not neces- 
sary to intimate whether, In tliat case, the 
appointment of a trustee to hold the legal 
title would have been necessary, or whether 
the heir at law would have been converted by 
the use Into a trustee of the legal title. This 
devise, however, was not a private trust be- 
cause of its Indeflniteness in this very re- 
spect ; and for this reason it falls within the 
definition of a public charity which it Is the 
duty of the court by virtue of their equitable 
jurisdiction over that subject to recognize 
and administer. 

[4] 3. It is hardly necessary after what we 
have said in the preceding paragraph to pre- 
sent other reasons for holding, as we do, that 
the gift in question here is sufficient In every 
respect to create a valid charitable use, for 
the benefit of the class which it sufficiently 
designates as the "worn-out preachers" of the 
North Missouri Conference. That this was a 
popular name for the Missouri Conference 
there can be no doubt from the evidence ; and 
were it not, the word prefixed to the official 
n^me is descriptive in its meaning, and af- 
fords in itself a simple element of identifica- 
tion that takes nothing from the true name 
which succeeds It, and the class of benefici- 
aries to which it refers is so identified that 
they may be easily and definitely ascertained. 
In a careful study of the appellants' brief we 
have failed to find any suggestion in conflict 
with the well-established rule that uncertain- 
ty as to persons is one of the elements of a 
charitable use as distinguished from a per- 
sonal trust or any good reason why the un- 
certainty in this case is of such a nature as 
to call for a trustee with power of selection 
to give it validity. We therefore hold that 
'this is a charitable use which may be ad- 
ministered by the court through its ovm tn- 
strumentalities. 
[J] 4. In the view of the matter which we 



have taken it is unnecessary to dedde wtaetb- 
er the Board of Stewards of the Missouri 
Conference of the Methodist EJplscopal 
Church, incorporated as such long after the 
death of the testator,. is a religious coipora- 
tlon within the meaning of the Constitution 
or not It was an association of individuals 
by that name at the time the will was execut- 
ed and also at the time the charitable use be- 
came effective ; and at the time of its incor- 
poration was in possession of this land by its 
tenant. Its act of incorporation, if void, 
worked* no cliange In the capacity in which 
its members, throu^ the unincorporated as- 
sociation, had been acting. They were right- 
fully in possession, executing the trust under 
the direction of the court and the plaintiffs 
had no beneficial interest or possessory title. 

This la a plain suit in ejectment in which 
no equitable relief was asked by either party, 
or granted by the court Although the court 
stated ite conclusions of fact as provided by 
section 1972, B. S. 1909, they constituted no 
part of the Judgment so as to bind the parties 
outside the issues included in it The quea- 
tiou of the incorporation of the Board of 
Stewards is not such an issa& 

The Judgment is affirmed. 

RAIUuX, C, concur; 

PER CURIAM. The feregoing opinion of 
BROWN, C, is adopted as the opinion of tbe 
court All, concur. 



STATE ex rel. SCUI/LIN et al. v. ROBERT- 
SON et aL (No. 18668.) 

(Supreme Court of Missouri, Division Mo. 1. 
June 2, 1916.) 

1. Ckbtiorabi ^s»67— Review — Sttbxissiok 

to jubt— sufkcienct of evidence. 
On certiorari to review the judgment of the 
Court of Appeals in remanding the cause after 
reversal because of the jury's failure to return 
a verdict on separate counts alleging defendant's 
liability under the humanitarian doctrine, not- 
withstanding plaintiff's contributory negligence, 
the finding of the appellate court tiiat eTidence 
was sufficient to warrant a sabmisBion of sudi 
count to the jury, where such count was submit- 
ted to the jury by the trial court will not be 
reversed, where the record does not contain all 
the evidence. 

[Ed. Note. — For other cases, see Certiorari, 
Cent Dig. § 145; Dec. Dig. «=>57.] 

2. Appeal and Eebob «=:>1178(2)— Disposi- 
tion AFTKB REVEBSAL — REMANDINa CaUSK 
FOB InSITFTICIENCY OF EVIDENCE. 

The action of the Court of Appeals in re- 
manding a cause after reversal tviU not be dis- 
turbed even though the evidence be insufficient 
to support a recovery, where there is a possi- 
bility that sufficient evidence may be adduced on 
another trial, since the appellate court under 
Rev. St 1909, S 20S3, has authority to remand 
in such cases. 

[Ed. Note. — For other cases, see Appeal and 
Error. Cent Dig. {| 4606-4610; Dec. Dig. «s> 
1178(2).] 



4=>ror otlter cum im same topic and KEIT-NU MBBR In all Key-Noinbered Sisests and IndezM* 



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Ho) 



STATE V. ROBERTSON 



S5 



3. GotntTS «=>!i07(2}— OnmOBABi to Rktisw 

JUDOHZKT OF COUBT OF APFKALfl— COWIXIOT 
OF DBCISIORS. 

On certiorari to review jadgment of the 
Gonrt of Appeals on the groand that its ded- 
RJon, refaainr. to determine whether yerdiet «n 
one coDot is a bar to action* on other counts 
eoTeriag the same cause of action, is in conflict 
irith dwignated decisions of the Supreme Court, 
the writ sbonld b« qnasbed where no sach cop- 
flict in fact is shown. 

[Ed. Note. — For other cases, see Conrts, Dec. 
Diif. ^=207(2).] 

4. Appbal and Brbob €=»1178(2)— Disposai- 
OF Cask afteb RkvbbsaI/— Remandino Cass 
lOB EiBBOBS Not Raised bt Oboss-Affkal. 

The Court of Appeals, in reversing a judg- 
ment, may under Rev. St 1009, S 2083, look into 
the entire jecord and remand the case if errors 
appear therein, though such errors are not rais- 
ed 07 the respondent by crosa-appeal. 

[Ed, Note. — XV>r other cases, see Appeal and 
Error, Cent. Dig. |S 4005-4610; Dec. Dig. €=» 
1178(2).] 

5. JlTDOiaSItT #=3o81— JUDOMENT ITPON ONK 

Gonnr as a Bab to Recovert on Otheb 

Couins — EiFnecT of Rktebsai, of Such 

Jddomxht. 
While a recovery npon one count is final 
and in bar of recovery upon other counts, a 
reversal of the judgment on appeal removes the 
bar, and on another trial recovery may be allow- 
ed on a count other than the one on which the 
former judgment was had. 

[Ed. Note. — For other cases, see Judgment, 
Cent Dig. f 1025; Dec. Dig. <8=:>581.] 

OertioraH on the relation of John Scullln 
and others, receivers, against W. R. Robert- 
son and others, Judges of the Springfield 
Court of Appeals. Writ quashed. 

On the qoestioQ of the right of appellants 
to complain of errors against F^gg, who did 
not appeal, relators cite the following author- 
ities in their brief: Section 2082, R. S. Mo. 
1900; Sarwdn t. Railroad, 153 Mo. 479, 55 
8. W. 92 ; Campbell v. Coquard, 93 Mo. 474, 
6 S. W. 860; Schmidt v. Densmore, 42 Mo. 
225; St Lonls ▼. LAnigan, 97 Mo. 1. c. 180, 
10 & W. 476 ; Nearen t. Bakewell, 110 Mo. 
645, 19 S. W. 988 ; Callaway Co. v. Ilender- 
son, 119 Mo. 32, 24 S. W. 437; Sutton t. 
OameroD, 100 Mo. 141, 13 S. W. 497 ; Amon- 
ett T. Montague, C3 Mo. 204. 

0. Lb Crav«ii8, of Neosho, for relators. 
Hvbbett & Hnbbert, d Neosho, tor respond- 
ent& 

BLAIB, J. Certiorari. The record we are 
called npon to review la that of the Spring- 
field Court of Aiweals on an appeal by de- 
ffendanta from a judgment of the Newton 
drcnit court in favor of David Fagg In an 
action he Instltnted against relators, receiv- 
er! of the lillssoari & North Arkansas Rail- 
road Oompany, to recover damages for per- 
sonal injuries and loss of property sutCered 
when a wagon which be was driving was 
(trade by a car propelled by a gasoline motor 
and opiated by relators' employes over the 
nUroad of which they had charge. 

In that case the petition Was in three 
eoonts, each based npon the same canse of 



action.. The first connt Uleged a failure to 
sound crossing signals. The second was 
based ujpon the humanitarian doctrine. The 
third alleged a failure to provide a proper 
crossing. Demurrers to the evidenoe under 
each count were offered by appellants, but 
were overruled, and the trial court submitted 
the case to the jury upon all three counts. 
There was a verdict for $200 for plaintiff, 
Fagg, on the first count, but the jury made 
no express finding upon the second and third 
counts. Judgment was entered on. the ver- 
dict, and defendants, these relators, ap- 
pealed. The Springfield Court of Appeals 
heard the cause, and held there was evidence 
tending to support the charge in the first 
count of the petition that no crossing sig- 
nals were given, but also held plaintiff's evi- 
dence, as a matter of law, convicted lAm of 
contributory negligence barring recovery un- 
der the first count So holding, the Court 
of Appeals reversed the judgment on the first 
count It also expressed the opinion there 
was no substantial evidence tending to 
prove the allegations of the third count 
Having reached these conclusions, it took 
up the question whether the cause should be 
simply reversed, or reversed and remanded. 
It found tliat plaintiff had so pres«ited his 
case in the trial court as to call for a find- 
ing on each count, that defendants had in- 
duced the trial court to give an obviously .er- 
roneous instruction on the second count 
involving the humanitarian doctrine, and 
that "It may have been this erroneous In- 
struction on plaintiff's second connt that 
caused the jury to fall to make a finding for 
the plaintiff on such connt" It then con- 
cluded the opinion thus: 

"Whatever may he the effect of the failure of 
the jury to make a finding on the second and 
third counts of the petition in the verdict, it 
would be no bar until a judgment was rendered 
in defendants' favor on such returned verdict; 
and no question is before us an the verdict re- 
turned so far as the second and third counts 
are concerned, because no judgment was entered 
thereon as to such counts. Besides, the ques- 
tion as to what order shall be made in case of 
reversal is not briefed by the attorneys. In view 
of the error in the instruction on the humani- 
tarian doctrine, we will not decide whether the 
failure of the jury to make a specific finding 
on the second count is" such a bar as to deny 
plaintiff the right to a trial on such issue. The 
judgment appealed from is reversed, and the 
cause remanded." 

The application for our writ complains 
that the Court of Appeals failed to follow 
certain decisions of this court in that It con- 
sidered errors against the nonappealing 
plaintiff, Fagg, i e., the erroneous instruc- 
tion upon the second count, that it implied- 
ly at least Iield the evidence suflldeut to 
take the .case to the Jury on the humanita- 
rian doctrine under the second count, despite 
the fact that such evidence, relators contend, 
was clearly insuflScieut under dted decisions 
of this court, and that it Ignored numerous 
decisions dted which are said to hold that 



CsaFoT other «asM see same topic and KSY-NDHBBR u all K«7-Number*d Diseats and Ii^dazaa 



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86 



187 SOUXaWBBTERN RBPOBTEB 



(Mo. 



a verdict on one of aeverel counts of a pe- 
tition, such a« tbat In this case, the seTeral 
counts merely making different statements 
of the sariie cause of action, Is a complete 
and final bar to those counts upon which 
there was no express finding, the effect of 
which plaintiff could have removed only by 
successfully prosecuting an appeal therefrom. 

[1] 1. So far as concerns the contention 
the evidence is Insufficient to support the sec- 
ond count and make out a case under the hu- 
manitarian doctrine, we need not discuss 
the cases cited by relators, since there are 
answers to their contention not depending 
thereon: First, the trial court sent the case 
to the Jury on the humanitarian doctrine, 
and then the Court of Appeals impliedly 
held the evidence sufficient to Justify that 
action. Those courts had the entire evi- 
dence before them and passed upon the ques- 
tion in view of It alL We have before us in 
this case only such facts as One Court of Ap- 
peals thought necessary to state in connec- 
tion with the Questions arising under the 
first count as to the failure to sound cross- 
ing signals and Fagg's contributory negll- 
genca In view of the fact the Court of Ap- 
peals thought fit to remand the cause on the 
second count, we cannot presume the evi- 
dence was insufficient to Justify sndi action, 
nor, to overthrow that ruling, can we pre- 
BUQie the court set out, in considering the 
question presented under the first count, all 
the evidence in the case applicable to the 
question whether the evidence supported the 
second count Presumptions run in support 
of the action of the Court of Appeals in 
such circumstances. Second, even if we could 
conclude the court attempted to state all the 
evidence in the case, and that, as contended, 
it was insufficient to support the second 
count, yet the Court of Appeals, with the 
whole record before it, may have rightly 
concluded that it appeared therefrom that on 
a retrial Fagg might be able to adduce addi- 
tional evidence which would entitle him to go 
to the Jury upon the humanitarian doctrine 
under the second count. In such circum- 
stances It is the settled practice of this court 
to remand causes for retrial even when wo 
hold the evidence In the record insuificlent to 
make a case. This is true even in criminal 
cases. No case holding the contrary is dted. 
We cannot hold our brethren of the Court 
of Appeals in error for ruling as we ourselves 
habitually rule. 

[2] 2. The next and most Important con- 
tention is that the Court of Appeals had no 
power to remand the case because, it is in- 
sisted, the verdict upon the first count be- 
came an immediate and final bar to any right 
to proceed upon other counts. 

(a) In the first place, the remanding of the 
cause might be sustained upon a theory ad- 
verted to in the preceding paragraph ; i. e., 
that the Court of Appeals deemed it right In 
the exercise of Its power in the premises (sec- 
tion 2083, B. & 1900) to send tbs case back 



for retrial up<» the first count on the belief 
that the record Indicated odier evidence 
might be adduced imder that count The 
opinion of the Court of Appeals does not, 
however, give this aa its reason for the or- 
der remanding the cause. 

[3] (b) Another ground upon which the or- 
der mentioned can be sustained is that the 
Court of Appeals expressly refused to dedde 
whether the verdict upon the first count is a 
final and complete bar to the action upon the 
second and third counts, thus leaving the 
question open and remanding it with the 
cause to the trial court That ruling is 
clearly not in conflict with any of the de- 
cisions of this court cited by relators which 
are said to hold such bar final upon the ren- 
dition of a verdict on one count of a petition 
containing several counts covering the same 
cause of action. Since conflict with desig- 
nated decisions is the sole ground on which 
we are asked to quash the record of the 
Court of Appeals, and as on the theory stat- 
ed there Is no such conflict our writ should 
be quashed on that ground. 

[4] (c) It may be conceded that Fagg, not 
having appealed, could not complain of the 
error in the Instruction to which the Court 
of Appeals refers in Its opinion. Scott v. 
Ferguson, 235 Mo. 576, ISO S. W, 102. The 
question is, however, not what Fagg could 
do, but whether the Court of Appeals in re- 
manding the cause ran counter to the deci- 
sions of this court upon which relators rely 
to convict that court of getting outside the 
law applicable to that question. Relators 
cite numerous decisions (see briefs) in which 
this court and the Courts of Appeals have 
refused to consider complaints of errors com- 
njltted against the party who succeeded in 
the trial court In none of these cases cited 
by relators was the question presented which 
is now urged. In none of them, so far as 
our examination has gone, did this court hold 
that, upon the question whether it would 
reverse the Judgment outright or would re- 
verse it and remand the cause, it might not 
consider everytUng the record showed. The 
question was decided the other way in Turn- 
er V. Anderson, 236 Mo. loc. dt 542, 139 S. 
W. 180, et seq. In that case, a will contest 
the petition set up two grounds for setting 
aside the will involved — testamentary inca- 
pacity and undue influence. In tbat case i 
the trial court, of Its ovm motion, had taken 
from the Jury the question of testamentary 
incapacity, and then submitted the case to ' 
the Jury on the issue as to undue influence. 
On appeal by the proponents only this court j 
held there was no evidence of undue in- 
fluence, but that the record did contain sub- 
stantial evidence tending to prove testamen- i 
tary incapacity. It then reversed the Judg- 
ment entered upon the verdict against the 
wUl, on the issue of undue influence, and r^ 
manded the cause for trial on the istnie 
to testamentary Incapacity, despite the fact , 






Ma) 



STATE ▼. ROBERTSON 



87 



tbat contestants bad not appealed. In fact, 
it was held conteetants could not have ap- 
pealed, not being aggrleyed by any Judgment 
The court said: 

"At we bare dctermiiied that the jadgment 
etiinot stand on the isaue of undae influence 
found in favor of contestant, we are confronted 
witli the question whether we will reverse and 
remand the case generally or reverse and remand 
with directions to probate the will. Sometimea 
we hare done the latter. McFadin y. Catron, 138 
Mo. loc. cit. 227 [38 S. W. 932, 39 S. W. 771], 
Story V. Story, 188 Mo. loc. cit. 129 [86 S. W. 
225), and Hamon t. Hamon, 180 Mo. loc dt. 702 
[79 S. W. 4221, are aamples of guch disposition 
of cases. In Bradford v. Blossom, 207 Mo. loc. 
cit. 234 [105 8. W. 289], we reversed a judg- 
ment establishing a will, and gave directions to 
enter one rejecting the will. It is not worth 
vhile to discuss the questions whether there is 
anything so peculiar about a will case that appel- 
late courts refer to those peculiarities as grounds 
for ao adjusting their judgments and man- 
dates as to attain the ends of justice, or whether 
the practice in that behalf is referable alone to 
statutes regulating the disposition of cases on 
appeal. It is sufficient to refer to the practice 
and let it stand as its own reason. It is also 
settled practice to reverse and remand for a new 
trial generally where that course meets the ends 
of refined justice. The statute says (R. S. 1900, 
i 20)s3) that we shall award a new trial, reverse 
or affirm the decision of the circuit court, or give 
lucb judgment as such court ought to have given 
as to us shall seem agreeable to the law. The 
practice under that statute has been flexible 
enough to permit the award of a new trial on the 
whole case, or on a certain issue, or to retry 
bj eliminating pointed out errors, or to retry 
ra a certain theory of the law, or by including 
or excluding certain evidence. Donnell v. 
Wright, 190 Mo. loc. cit. 317 [07 S. W. 928]. 

"In this case contestant took no appeaL He 
was not 'aggrieved by the judgment of any dr- 
euit court m any civil cause^ (R. S. l909, J 
20it3), and therefore could not appeaL He was 
not entitled to a bill of exceptions to be brought 
here for review. If he had taken his exceptions 
md had them preserved in a bill, that bill would 
have Iain below on the appeal of proponents. 
Patterson v. Patterson, 200_Mo. loc. dt 342 [98 
B. W. 613] et seq. In such condition of things. 
If we refuse to consider the testimony on testa- 
nentary incapacity, our refusal would amount to 
ine of two things, viz.: Thereby we would: (1) 
Indirectly (wiUy-nilly) sustain uie ruling taking 
that issue from the jury whether we were of 
»pinion it was right or wrong ; (2) or (if we 
»oclude it was wrong) we would turn contest- 
int out of court without a just determination of 
iat issue — a theory palpably abhorrent to refin- 
!d justice. In this case we are relieved from 
ill embarrassment by the fact that appellants 
lecessarily brought the testimony relating to 
ieftamentary incapacity to this court for our 
nnsideration. It was an essential element in 
lie determination of the question of undue in- 
hience." 

This dedsion is enifllciently in point, and 
t was Id accordance with the principle it 
innooncea that the Court of Appeals, after 
tetertnlnlng to reverse the judgment In 
ilagg's case, looked into the whole record to 
letemilne whether It should stop with a 
Here reversal or should remand the cause. 
^Tiat Is said about the entire evidence be- 
ng before the court In that case, and thus 
ellering us from embarrassment, does not 
ollltate aga'lnst the application of the rule 
this case. In this case the Court of Ap- 
leala had all the erldenoe before It It had 



the Instructions before It It was In the 
situation this court was in In Turner r. An- 
derson, supra. The fact the whole evidence 
is not before «« does not affect the matter 
Bare that dt Justifies us In presuming the 
record before the Court of Appeals Justified 
whatever action It took In so far as evidence, 
rulings on Instructions, etc., could Justify it 

[I] (d) It Is urged, however, that the ac- 
tion of the Court of Appeals Is In conflict 
with those cases which hold a defendant can 
be held to but one Uabllity, and that, In an 
action on a petition containing several counts 
stating the same cause of action different 
ways to meet the course the evidence may 
take, a recovery on one of such counts Is a 
bar to Judgment on any other such counts. 
Boeger v. Langenberg, 97 Mo. loc. cit 397, 
11 S. W. 223, 10 Am. St. Rep. 322. ThU 
case makes a careful statement of the doc- 
trine. It Is supported by many decisions, as 
the briefs show. It Is said in some of the 
cases cited by relators that the finding upon 
one count In such a case Is "a bar to any 
further recovery on any count In the peti- 
tion," or that there "is an Implied finding 
against plalntUF' on all counts In such a 
case except that upon which the Jury based 
Its verdict Hoyle v. Farqubarson, 80 Mo. 
loc. dt 378 ; Owens v. Railway, 58 Mo. loc. dt. 
394. Relators base their contention upon the 
Idea that the Jury's silence upon the second 
and third counts was an Implied finding 
against plaintiff thereon which survives even 
the reversal and destruction of the express 
finding from which It was implied, and bars 
forever any further proceeding on the counts 
Ignored by the verdict We think the Implied 
finding falls with the actual finding or ver- 
dict which was Its foundation. While a ver- 
dict upon one count In a case of this kind 
stands It Is well enough, only a single re- 
covery for a single Injury being permissible, 
to say that it bars the remaining counts 
grounded upon the same claim ; but when 
that verdict no longer exists, having been 
reversed, bow can It give rise to either Im- 
plication or bar? That plaiutiCf did not ap- 
peal Is no answer. He could not appeal- 
There was no Judgment against blm. Turn- 
er V. Anderson, supra. Further, when de- 
fendants appealed from the verdict on the 
first count, they took to the appellate court 
the whole verdict, dmpUcatlons and all. The 
decisions relied on by relators do not, when 
properly understood and read In connection 
with the facts upon which they depend, pre- 
sent a contrary view. The case of Hamon 
V. Hamon, 180 Mo. 702, 79 8. W. 422, was 
before the court in Turner v. Anderson, su- 
pra, and was not regarded as calling for a 
conclusion different from that reached. Fur- 
ther, the facts in the record in the Hamon 
Case are not shown to have made a prima 
fade case on the question of undue Influ- 
ence. 

For these reasons, our writ Is quashed. 
All concur; BOND, J., in result only. 



gitizedb/Vl 



g'e 



.38 



187 SOUTHWBSTEfiN BBPOBTER 



<lIov 



BROSS et aL ▼. ROGERS et aL (No. 17886.) 

(Supreme Oart of Missouri, Division No. 1. 

June 2, 191&) 

1. Oancbixation or Inbtbuuentb <Ss347 <— 

FrADD — SUFFICIENOT OF EVIDENCS. 

In suit to cancel a deed on the ^ound that 
it was procured by deceit and conspuracy to de- 
fraud, evidence held Insufficient to show any 
fraudulent knowledge or connection of a defend- 
ant with an antecedent trade between a plain- 
tiff and a Kansas corporation. 

[Ed. Note.— For other cases, see Cancellation 
of Instruments, Cent Dig. U 102, 103; Dec 
Dig. «=.47.] 

2. Evidence i3=5317(2)— Hearsay. 

In suit to cancel a deed as procured by de- 
ceit and conspiracy, testimony of plaintiff that 
he heard it affirmed by a neighbor that a de- 
fendant was a "party to a fraud to beat him out 
of his land" was incompetent as hearsay. 

[Ed. Note.— For other cases, see Evidence, 
Cent. Dig. {§ 1176, 11»2; Dec Dig. «=>317(2).j 

3. Cancellation or Instbvments €=947— Db- 

OBEE OF PBOOF. 

In a suit in equity to cancel a deed or other 
solemn instrument, whether by the establish- 
ment of a trust, the showing of fraud and de- 
ceit in procuring the deed, or any other impeach- 
ing method, the proof to justify such action on 
the part of the court must be so clear, convinc- 
ing, and complete as to exclude any reasonable 
doubt In the chancellor's mind. 

[Ed. Note. — EV>r other caaes, see Cancellation 
of Instruments, Cent Dig. $g 102, 103; Dec 
Dig. <8=>47.] 

4. Deeds iS=>211(3)— Deceit and Cors^ibaot 
—Sufficiency of Evidence. 

In suit to cancel a deed on the ground that 
it was procured by deceit and conspiracy to de- 
fraud, evidence of deceit and conspiracy on the 
part of a defendant held insufficient to satisfy 
the legal requirement of clear, convincing, and 
complete proof. 

[Ed. Note.— For other cases, see Deeds, Cent 
Dig. a 644, 645 ; Dec Dig. «=>211(3).] 

5. Deeds ®=>196<2)— Deceit and Conbpibacy 
— BuBDEN OF Proof. 

In suit to cancel a deed on the ground that 
it was procured by deceit and conspiracy, the 
harden of adducing clear, convincing, and com- 
plete evidence of such deceit and conspiracy 
rests on plaintiff. 

TEA. Note.— For other cases, see Deeds, Cent 
Dig. i 640; Dec Dig. «=al96(2).] 

Appeal from Circuit (3ourt, Marion Coun- 
ty ; WilUam T. Ragland, Judge. 

Siilt by Edward J. Bross and others against 
John J. Rogers and others. From a decree 
dismissing the petition, plaintifTs appeal. Af- 
firmed. 

Jas. A, Kemper, of Warrensburg, for ap- 
pellants. R. S. McClintic, of Monroe City, 
and Humphrey & Gose, of Shelbina, for re- 
spondent Rogers. 

BOND, J. I. This Is a suit In equity to 
set aside and cancel a deed to ICO acres of 
land, executed by plaintiffs to defendant Rog- 
ers; plaintifTs alleging that it was procured 
by deceit and conspiracy to defraud upon the 
part of Rogers and his codefendants. 

The material facts are these: PlaintiiTB 
owned a farm of 160 acres in Marion county. 
Mo., which they agreed to trade for 640 acres 



of land in Kansas, giving $800 boot During 
the negotiations the' owner of the Kansas 
land offered the Missouri land, which plain- 
tiffs had agreed to ezctiange, to defendant 
Rogers for $70 an acre. Rogers declined to 
consider It at that price. Bross had also 
agreed to assist in finding a purchaser for 
his farm to aid the Kansas people In dispos- 
ing of It. The highest offer any of them 
obtained for it was $50 an acre. Later Pur- 
nell, one of the defendants, again approached 
Rogers, who again refused to purchase at 
$70 an acre, but made a counter proposition 
of $52.50. This offer was accepted, and ar- 
rangements were made for the parties to 
meet at Palmyra with their representatives 
and close the two deals. At this time a deed 
was made to plaintiffs conveying the Kansas 
land, and plaintiffs executed their deed direct 
to Rogers. To consummate this deal, which 
was to be entirely In cash, Rogers borrowed 
$8,400, from his attorney McClintock, giving 
him a deed of trust on the Bross farm for 
$4,500 and another deed of trust for $3,900 
on other lands he owned. 

At the hearing In the circuit court the pe- 
tition was dismissed and judgment given for 
defendants, from which plaintiffs perfected 
an appeal to this court The decisive ques- 
tion presented here is whether or no the de- 
fendant Rogers was a party to the fraud and 
conspiracy alleged to have been practiced In 
the obtention of the deed. 

II. In considering the question of the in- 
nocency of the purchase by defendant Rog- 
ers, we shall assume, for the argument, that 
the trade between plaintiffs and the other 
defendants was induced by fraud, inlsr^re- 
sentation, and deceit upon the part of the 
persons acting for the Kansas corporation 
which held the title to the land conveyed to 
plaintiffs, and then determine, seriatim, the 
validity of the several points relied on to 
prove that defendant Rogers was cognizant 
of or a party to the fraud of his codefend- 
ants. 

[1] The first circumstance adverted to is 
that Purnell, the active agent of the Kansas 
owner in bringing about the exchange, bad 
married a cousin of the deceased wife of 
Rogers and was presumably on social terms 
with him. It is too much to say that such a 
connection was sufficient to support an in- 
ference of fraudulent conspiracy between 
Rogers and FurnelL G?faere la not a shadow 
of testimony that Rogers had any part or 
lot in the scheme of Pomell to induce the 
appellant Bross to go to Kansas and Inspect 
the lands conveyed to him. Nor Is there any 
evidence that Rogers knew anything of the 
terms of the trade between Bross and the 
Kansas corporation until It had been reduced 
to writing and nothing was left to be done 
except the execution of mutual deeds; for 
it is at this stage that Rogers came upon the 
scene, and then only as a purchaser from )\(> 



0s>For other ease* aee same topic and KST-NUMBBS In all Ker-Nufflbered Dlgasts and ladaxei 



Mo.) 



CX>RIiX8S ▼. BAXHBRTON 



I 



the Kansas ewporatlaa. HaTtatg tliiiB gotten 
tiUe, he gave antborlty to Purnell to sell the 
land, wltbln a limited time,, at a small ad- 
vance on what he had paid for It, and he 
also employed an Illinois agent to Bell the 
land, throng whom It was afterwards sold 
to a resident of that state. No part of the 
commission for this sale was paid to Pnr- 
nell. since the authority given to him lapsed 
vritfaoat his procuring a purchaser. 

We see no evidence in any of these transac- 
tions of any fraudulent knowledge or con- 
nection of Rogers with the antecedent trade 
between appellant Bross and the Kansas cor- 
poration. 

[2-4] III. It Is next Insisted that Rogers' 
partidpancy Is inferable from the testimony 
of Bross that he had heard it affirmed by a 
neighbor, Mr. Mclntire, who originally got 
him Into negotiations with Purnell, that 
Sogers was a "party to a fraud to beat him 
out of his land." This statement. If not In- 
(■ompetent as hearsay, would have been un- 
satisfactory for the reason that It was de- 
nied by the alleged maker; and the same 
may be said of the testimony of appellant 
that Purnell told him that he bad a con- 
tract with Rogers to divide all they got over 
and above what Rogers paid. That contract 
Is in writing and In evidence and only gave 
PurneU authority to sell at fixed prices be- 
tween certain dates, and to have as compen- 
sation whatever he might get over the 
amounts limited. This contract shows no 
'Jther rights of the parties to divide the sur- 
plus of a sale over the purchase price. 

Neither did the statement of appellant that 
Purnell told him Rogers was "a holding par- 
ty" alTord proof of fraud on his part. This 
statement was denied by several witnesses, 
nod the attendant circumstances conclusively 
Ebow that he was not a holding party for 
the other defendants, or for their principal, 
the Kansas corporation. He bought this 
land with $8,400 cash, which he lx>rrowed 
ind secured by a mortgage on It and other 
ands owned by himself. This money was 
•aid out by respondent according to the di- 
rection of his vendor, the Kansas corpora- 
ion. The land so acquired was sold by Rog- 
rs through an Illinois agent, and no part 
if the proceeds was shown to have been paid 

the Kansas corporation, or to Purnell, or 
iny other of Its agents. 

It is impossible to view the circumstances 
minted out by appellant, as carrying the 
iroof-power prescribed by law to set aside 

1 deed or other solemn instrument In equity. 
n such circumstances, whatever the specific 
pounds, whether the establishment of a trust 
ir the showing of fraud and deceit in the 
rrocurlng of a deed, or any other impeaching 
Bethod, the rule ds, without exception, that 
be proof to Justify such action on the part 
if the court must be so clear, convincing, 
ind complete as to exclude any reasonable 



doubt' In the mind of the chancellor. Ill*: 
feeble Inference arising from a distant t«- 
lattonship by marrlaie and' statements am- 
biguous in Import and resting purely on hear-; 
say do not meet the demands of the law, 
which requires the fraud herein alleged to' 
be shown by proof of the above character 
and strength. 

[J] The burden of adducing evidence of 
that degree and cogency rested upon appel- 
lants. It has not been discharged in this 
case. 

Hence the decree of the learned trial judge 
dismissing the petition Is affirmed. All con- 



CORLESS V. EATHERTON et al 

(No. 16810.) 

(Supreme Court of Missoari, Division No. 1. 

June 2, 1918.) 

Easements i8=36(3)— Evidence to Aid Con- 
sTBucnow — Intention of Testator. 
'Where a private road ran from testator's 
residence across three adjoining tracts to a 
county road, evidence held to show intention of 
testator to reserve such road from a residuary 
devise of the tract nearest the county road. 

[Ed. Note. — For other cases, see Easements, 
Cent Dig. §{ 77, 78, 88, 93; Dec Dig. «=» 
36(3).] 

Appeal from Circuit Court, St Louis Coun- 
ty; G. A. Wurdeman, Judge. 

Suit for injunction by John C Corless 
against James 'W. Eatherton and another. 
From a decree for defendants, plaintUC 
appeals. Affirmed. 

On Deceml>er 12, 1910, plaintiff commenced 
In the circuit court aforesaid a suit by in- 
junction against the above-named defendants 
to restrain them from cutting a wire fence 
on plaintiff's land where it crosses a private 
roadway running through the northwest por- 
tion of plaintiff's 70 acres in a southwesterly 
direction through the 50 acres of said James 
W. Eatherton; thence southwest through 
the west 70 acres purchased by plaintiff and 
sold to his father. A plat appears between 
pages 2 and 3 of respondents' brief which 
shows the location of the lands, residences, 
roads, etc., and is herewith made a part of 
this statement. 

Evidence. On February 13, 1901, James R. 
Eatherton was the owner in fee simple of the 
two 70-acre tracts and the 50-acre tract of 
land shown by the plat aforesaid. On the 
date last mentioned said James R. Ekktberton 
executed in due form his last will and testa- 
ment, and left all his real and personal prop- 
erty to his wife, Martha Eatherton, for life, 
with remainder to his children. Paragraph 3 
of said will devised to said James W. Eath- 
erton the 50 acres aforesaid, and after de- 
scribing same concludes as follows: 

"To have and to hold the same to him the said 
James Vf. Eatherton and to his heirs and as- 
signs forever, providing that be or they most 
keep open my private road running over said 50 



>Forotl>er caaai lee ■ame topic and KET-NUUBBR In all Kejr-Numbered Digests and IndexM 




Google 



40 



187 SOUTHWBSTEBN BGPOBXBB 



(Uoi 



acres, from toy dwelling to the said Wild Hone 
Greek road." 

Paragrapb 6 of said will reeds aa fol- 
lows: 

"After the decease of my said beloved wife all 
the balance of my land as well as all personal 
property which my said wife may leave, is to 
be divided in equal shares among all my chil- 
dren, to wit: One share to my son Alexander 
Batherton, one share to my son George Katber- 
ton, one share to my son Charles Eatherton, one 
share to my son John B. Eatherton, one share 
to my son James W. Eatherton, one share to 
my daughter Frances Orr, one share to my 
daughter Txirena Orr, and one share to my 
daughter Emma Corless." 

Said James R. Eatherton died on tbe 28tb 
day of April, 1901, and the will aforesaid 
was duly probated, etc. 

On February 9, 1903, said George Bather- 
ton, James W. Eatherton, and the other 
children and heirs at law of said James R. 
Eatherton, except plaintlfTs wife, entered 
into a written contract with plaintiff for 
the sale of the two 70-acre tracts shown upon 
the plat aforesaid for the sum of $3,500. 
Said contract contains the following recita- 
tion: 

"We agree to convey to him all onr right, 
title, and interest to said land devised to ns in 
said last will and testament, in the fiftli clause 
thereof, by a sufficient deed or deeds." 

Nothing was said In this contract about 
the private road mentioned in the third par- 
agraph of said will. 

Afterwards, on the 17th of September, 
1903, said George Eatherton, James W. Bath- 
erton and the other heirs at law and children 
of said testator, except plaintiff's wife, con- 
veyed to plaintiff, by warranty deed, the two 
70-acre tracts aforesaid for tbe considera 
tion of 13,500. The above deed, following 
tbe description of said land, recites that: 

"Said two tracts of land being devised to us 
In the fifth clause of the last will and testa- 
ment of our father, James R. Eatherton. deceas- 
ed, which last will is duly probated in the pro- 
bate court of St Louis county, and is recorded 
in Book 137 at page 341 in the recorder's office 
of said county." 

Said deed contains the nsual covenants of 
a warranty deed, and after which concludes 
as follows: 

"Excepting one-eighth part of said described 
land, which is owned by Mrs. Emma Corless, 
and taxes for 1903, and thereafter." 

The above conveyance contains no recital 
In respect to the private road in controversy. 
Nothing was said by the beirs aforesaid or 
the plaintiff, about said private road when 
the contract and conveyance were executed. 
We gather from tbe testimony of defendants 
and the other heirs that nothing was said 
by them in regard to tbe private road in 
controversy, for the reason that they under- 
stood the road was reserved by the will, and 
tbat they had no right to convey the same. 
This private road constituted tbe only out- 
let from the residences of George and Alex 
Batherton, as well as tbat of James W. 
Eatherton, to the Wild Horse Creek county 
road, aa shown by tbe plat aforesaid. De- 



fendant George Eatherton testlfled that tes- 
tator went with him and his brother, Alei 
Eatherton, and helped them cut out tbe road 
through the woods leading out to the Wild 
Horse Creek road, and said to them: 

"Now, yon boys have a road that ia yoan u 
long as you live in there." 

This was In tbe faU of 187& 

Mr. Stelnes drew tbe will aforesaid In 
1901. He testified in behalf of respondents 
as follows: 

"Q. What did Mr. Eatherton say to yon in 
regard to Alexander and George and the outlit 
to the Wild Horse Creek road at the time too 
drew np this will, before you wrote thnt will? 
* • * A. He told me that he want€>d to re- 
serve his private road over the 50 acres into 
the Wild Horse Creek road for the reason that 
he had his sons living in the rear of him, and 
he wanted them to have an outlet to that road." 

This witness further testified as follows: 

"Q. How long is it, if von know, that this road 
has been a traveled road from the propcrtj- tliat 
is owned by Alexander and George to tbe Wild 
Horse Creek road? A. Between 50 and txi 
years. Q. Fifty and 60 years? A. Yre, sir; 
I know when Mr. Tyler occupied it — he was the 
predecessor of Mr. Eatherton — be useO it as an 
outlet, and I have traveled it myself before tbe 
war and during the war from the Henrken or 
from the Pond road, which it is now, it went 
through Hencken place and then through tbe 
Eatherton place into the Wild Horse Creek road, 
a county road." 

Without incumbering the record by quo- 
tations from the testimony, we find that for 
more than a quarter of a century before 
plaintiff bought the land aforesaid the abovi> 
private road was In existence, constantlv 
used by the Eathertons, plaintiff, and others, 
whenever tbey desired to pass along same to 
said public road on the north. This private 
road was Ukewlse worked by tbe Eathertons 
when it needed repairs. After plaintiff 
bought tbe east 70-acre tract aforesaid in 
1903, he, as well as the Elathertons and oth- 
ers, continued to use this private road, as 
they had always done, from tbe Wild Horse 
Creek road, by the residence of James VT. 
Eatherton, up to the time he fenced across 
said private road In September, 1910. We 
are fully satisfied from the evidence thnt tes- 
tator intended said private road should re- 
main as a private way of necessity across 
said 50 acres and to said Wild Horse Cre*k 
road when he executed the will aforesaid, 
and did not intend that said easement should 
be disturbed by said will. 

The court issued a temporary restraining 
order, but upon final hearing found the is- 
sues in favor of defendants, dlsmlsse<l apiicl- 
lant's bill, and entered Judgment accordinglj 
in favor of said defendants. The cause was 
duly appealed to this court by plaintiff, and 
the death of defendant James W. Eathertoi 
suggested herein. The cause was revived in 
the names of the widow and children of said 
decedent. The court appointed Hon. A. T 
Dumm as guardian ad litem for the ininoi 
children of said decedent, and he adoiitec 
the briefs heretofore filed by counsel for saiti 
James W. EathegtoB^^ ^, _^ ^*. - - 



Ma) 



OORIiBSS V. EATHBRTOK 



41 



D. C. Taylor, of Clayton, and Henry Hlg- 
Stnbotham, of St Lonla, for appellant. Ste- 
reos & Stevens, of Clayton, and B. M. Nicb- 
ota, of St. liouia, for reapondenta. 

BAILET, O. (after stating the facta as 
above). I. It la contended by appellant. Tin- 
der tbe facta heretofore set oat In the state- 
meot, that he acqolred title to that por- 
tion of the road in controversy which passes 
over the northwest comer of the east 70 acres 
which he bonght from the Eatherton heirs, 
and which is set out upon the plat aforesaid. 
It la true that the Eatherton heirs, except 
plaintiff's wile, executed and delivered to him 
a deed with general covenants of warranty, 
without reservation aa to said road, convey- 
ing to him the absolute title to said 70 acres, 
but It is Insisted by respondents that the 
Eatherton heirs did not own the private road 
la controversy across the 50 acres described 
on said plat, and running to the public road 
on the north. They contend that testator re- 
aerved said road from his residence to the 
poblic road, and that by reason thereof the 
aame did not pass to his heirs by the terms 
of said wUl. 

Under the authorities cited by appellant he 
may be entitled to maintain an action on his 
covenants of warranty for the damage, if 
any, which he has sustained on account of 
the failure of said heirs to convey to him the 
{oil title to said 70 acres, including the road 
in controversy rtmning over the same, but 
it does not follow, from the deed thus made, 
that he acquired title to the private road de- 
scribed in the third paragraph of testator's 
will. The latter at the time of the execu- 
tion of the will and up to his death was the 
owner of both the 70-acre tracts and the 60 
acres between same. He had the legal right 
to reserve this roadway in disposing of his 
property, and the evidence heretofore set out 
discloses a good and sufficient reason for so 
doing. He had l)een solicitous about his sons 
having an outlet from their residences to 
the public road on the north. He was ex- 
pecting in his will to devise to James W. 
Eatherton the 50 acres above mentioned, and, 
of connse, desired to reserve an outlet to him 
to said public road. Testator knew that in 
the ordinary course of events at his death 
the will would be probated and filed for rec- 
ord in St. Louis county, and would impart 
notice to all those undertaking to acquire ti- 
tle through his will that he had reserved the 
private road In controversy, and did not in- 
tend the same to be closed against his chil- 
dren and others who were desirous of using 
same. 

It appears firom the evidence that for more 
than a quarter of a century before the will 
above mentioned was executed the Eatber- 
toos, espedally George and Alex, had been 
using this road as an outlet to the public road 
on the north, and that they had no other 
way of trnveUng to said road aside from the 



mere license granted by Mr. Bates. The long 
and continued use of this road indicated a 
purpose upon the part of the original owner, 
Tyler, as well as liis successor, the testator, 
to leave the road open in order that the own- 
ers of the above tracts of land might have a 
roadway over the same to said county road. 
We are therefore of the opinion tliat it was 
the x:Iear intention of testator, in the execu- 
tion of hla will, to reserve the private road 
as it then existed, running over said 50 acres 
from his dwelling house to the Wild Horse 
Creek county road. 

In Bunch v. Wheeler, 210 Mo. loc. dt 628, 
109 S. W. 654, It is said: 

"The, grounds upon which a reversal is sought 
are: First, that the reservation in the deed from 
plaintiifto Fisher of 'the right of passway near 
the original road through aaid land for a pasa- 
way' was and is void tor uncertainty ; second, 
that if the reservation in the depd is void, then 
the testimony is entirely insufficient to show 
snch a user of a definite route as would cure the 
defect in the reservation." 

Judge Gantt, after stating the issues in- 
volved In above case, on page 628 of 210 Mo., 
on page 655 of 109 S. W., said: 

'There is in this record no question of a way 
of necessity. Neither, in our opinion, does the 
record support the contention that the alleged 
passway was created otherwise than by express 
reservation in the deed of plaintiff to Fisher. 
Tliis reservation in the deed from plaintiff to 
Fisher is equivalent, for the purpose of the crea- 
tion of the easement of a passway, to an express 
grant by the grantee Fisher to plaintiff." 

On page 630 of 210 Mo., on page 656 of 
109 S. W., Judge Gantt said: 

"We think a fair and reasonable construction 
of this reservation is that Fisher granted to 
Bunch a right to pass over the land along a 
route near to the then well-known and long- 
existing road through this land. We are not 
inclined to hold that the grant was void for un- 
certainty, inasmuch as it waa a mere easement 
or right to pass over the land, and, as the old 
road was a fixed monument or well-defined 
course, and the right of way granted was to be 
near that original road, it was snfficipntly defi- 
nite, and that It waa and is the right of the 
owner to put his gates at the east and west 
termini of said way to permit plaintiff to pasa 
through said premises, and to indicate where 
the way shall be, provided always it shall be 
'near' (which is a relative word) the old road." 

The facts in the above case are not as clear 
and explicit as they are in the case at bar. 
The great weight of the evidence discloses 
that the roadway reserved by testator over 
the 50 acres supra, and over the land of plain- 
tiff to said public road on the north, has 
been practically in the same place, and espe- 
cially in the northwest corner of plaintiff's 
land, for the last 30 or 40 years. The plain- 
tiff and E^thertons, as well as others, con- 
tinned to use this road after plaintiff bought 
the land In 1903 clear up to 1910 Just as it 
had been previously used. We are satisfied 
with the principles of law announced by 
Judge Gantt in the Bunch-Wbeeler Case su- 
pra, and rule that the same principles of lav 
should lie appUM to the case at bar. 



Qould lie applied to the case at bar. ^^^ t 

In view of the conclusion reachedj^^^^y Vj(3(3Q[^ 



^ 



187 BOUTHWBSTBBN aBPORTEB 



(Mo. 



not deem It necessary to pass npon otber 
questions of law discussed In the briefs. 

The decree of the trial court was for the 
right parties, and iB accordingly affirmed. 

BROVra, a, not sitting. 

PER CURIAM. The foregoing opinion of 
RAILBY, 0., is adopted as the opinion of the 
Oonrt AU concur. 



STATE ex reL COMBS t. STATEN et al. 

Justices of Vernon County Court. 

(No. 17977.) 

(Supreme Court of Missouri, Division No. 1. 

June 2, 1916.) 

1. Exceptions, Bnx of <S=>6 — Ircobfoba 
WON OF Evidence. 

There is no provision of law authorizing, a 
bill of exceptions tobe filed in the county court 
containing the oral' and documentary evidence 
introduced before such court so that it may be 
made a part of the record thereof. 

[Ed. Note.— For other cases, see Exceptions, 
Bill of, Cent Dig. §{ 8, 12; Dec. Dig. «=96.] 

2. Cebtiorabi <S=»70(4) — Appeal — Bilx. of 
Exceptions — Incosporation of Recobdb 
AND Evidence. 

In certiorari proceedings to review the ac- 
tion of a county court in establishing a public 
road, certified copies of the county court rec- 
ords, as well as the documentary evidence ac- 
companying them, and all the other evidence 
considered at the trial, should be incorporated 
in a bill of exceptions in order to become a part 
of the record, and without a bill of exceptions 
the Supreme Court can only consider the record 
proper, i. e., the petition, respondents' return, 
relators motion to quash, and the judgment. 

[Ed. Note. — For other cases, see Certiorari, 
Cent. Dig. §{ 201, 202; Dec. Dig. «e=>70(4).] 

3. Highways ie=s>60 — Certiobabi— Intbbeot 
OF Relatob in the Subject-Matteb. 

Relator, who failed to disclose, on the face 
of his petition for certiorari to review the ac- 
tion of a county court in establisliing a public 
road, that he had any interest in the subject- 
matter of the proceedings before the county 
court, was not entitled to the writ, so that the 
circuit court's action in dismissing the same 
was proper. 

[Ed. Note. — For other cases, see Highways, 
Cent Dig. §§ 204-213 ; Dec. Dig. <8=»60.] 

4. Cebtiobab!! ®=»5(1)— Remedy by Appeait— 
Statute. 

Under Rev. St. 1909, { 10140, touching ap- 
peals to the circuit court from the judgment 
of the county court opening any road, etc., rela- 
tor, petitioning tor certiorari to review the ac- 
tion of the county court in establishing a public 
road, had an adequate remedy by appeal, so that 
he could not resort to certiorari proceedings. 

[Ed. Note. — For other cases, see Certiorari, 
Cent. Dig. { 5 ; Dec. Dig. <S=»5(1).] 

5. Highways e=»60 — Certiobabi— Nullifi- 

' CATION OF PBOCEEOINGS. 

If proceedings for certiorari show want of 
jurisdiction on the part of the county court in 
establishing a pubhc road, all proceedings be- 
fore such court are nullified. 

[Ed. Note. — For other cases, see Highways, 
Cent Dig. {{ 204-213; Dec. Dig. <3=360.] 

Appeal from Circnit Conrt, Vernon Coun- 
ty; B. O. Thunnan, Judge. 



Certiorari by the State, on the relation of 
J. W. (Tombs, against Jasper N. Staten and 
others, JnMices of the Vernon Connty Court. 
From a Judgment dlsmiesing the writ, re- 
lator appeals. Judgment affirmed. 

On October 7, 1912, a petition for a writ 
of certiorari was filed in the circuit court 
of Vernon county, Mo., which without cap- 
tion and the description of the proposed road, 
reads as follows: 

"The relator herein, J. W. Combs, complains 
of the respondents, Jasper N. Staten, W. S. 
Creel, and Jas. H. Caton, and for cause of ac- 
tion states that the respondents do now, and 
did at all times her^nafter complained of, com- 
pose the county court of Vernon county, state 

of Missouri; and that on the day of 

October, 1911, it being the regular October term 
of the county court of said county, and state 
aforesaid, there was commenced before said jus- 
tices and in said county court a proceeding for 
the purpose of establishing a new public road 
in Harrison township, Vernon county, Mo., 
known as the Alva Ripley et aL public road, 
described as follows, to wit: (Here f<dlowB the 
description of the proposed road.) 

"The relator furtlier avers that said respond- 
ents have taken cognizance of and are proceed- 
ing to act in said matter thus brought before 
them, and are about to order said new public 
road opened, and are about to condemn and take 
from this relator a tract of land 40 feet in 
width and % mile long, tiirough relator's land, 
described as aforesaid. 

"Relator furtiier avers that said respondents 
are therein acting without authority of law and 
without jurisdiction in the premises, for the 
reasons, first, that the notices of the intended 
application for said road were posted by the 
petitioners and made returnable at the July 
term, 1911, of said county court, but that proof 
of said notices was not made until the following 
October term, 1911, of said court. And that 
said petition for said new public road was not 
filed as indicated by said notices, nor was the 
same acted upon by said county court until the 
regular October term, 1911, and that then said 
county court proceeded to order said road sur- 
veyed by the county highway engineer without 
first having given the remonstrators an oppor- 
tunity to be heard thereon, nor was any evi- 
dence heard by said court as to the pubhc ne- 
cessity, practicability, and probable damages to 
the owners of the land through which said pro- 
posed road would run, nor did they find and 
enter as a matter of record that said proposed 
road was a public necessity, or the practicabil- 
ity thereof, or that due notice of the intended 
application for said road was ever given, but 
proceeded at once to order the county liighway 
engineer to view, survey, and to mark out said 
proposed public road ; and then proceeded at 
once upon the report of said highway engineer 
to appoint three commissioners to assess the 
damages along said public road to the land- 
owners, without having determined as a matter 
of record that said commissioners so appointed 
by them aforesaid were qualified under the law 
to act as such commissioners, in this, that they 
failed to find that they were disinterested free- 
holders of said county. 

"Relator further avers that said proceedings 
of the respondents are altogether outside of 
the course of the common law, and likewise out- 
side of any statutory or judicial proceedings, 
and that no writ of error or appeal lies to sucli 
proceedings from this or any other conrt to this 
relator. 

"Wlierefore the relator prays this court to is- 
sue a writ of certiorari, directed to the re- 
spondents 4n their official capacity as afore- 



»For other coMt aee lame topic and KST-NOMBEK In all Key-Numbered DIgeiU and ladexea 



8le 



Mo.) 



STATE V. STATEN 



4S 



said, requiring them and eacli t>f tliein to certify 
to this court a true, full, and complete copy of 
the petition, remonstrance, record, and all other 
acts and proceedings in said matter, and have 
said copy retnmed to this court on or before 

the day of , 1912, in order that tliis 

court may adjudicate upon the legality of said 
proceedings, and may make such other and fur- 
ther adjudication and orders therein as right 
and justice may require. 

"J. B. Journey, 

"Attorney for Relator." 

A writ of certiorari was Issued In due 
form and served on defendants as the Jus- 
dees of said county court 

On October 7, 1912, respondents filed their 
return, which, without caption, reads as fol- 
lows: 

"Comes now the defendants in the above- 
entitled cause and, for return to writ of certio- 
rari issued against them, deny each and every 
allegation therran contained. Defendants state 
that all the proceediugs concerning the road re- 
ferred to in plaintiff's petition and writ were 
conducted according to law, and in pursuance 
with the statutes In such case made and pro- 
vided. 

"Defendants, for further return to said writ, 
bereby tender to the court the entire files and 
records of the county court in said road proceed- 
ings. Scott & Bowker, 

"Attorneys for Defendants." 

On October 16, 1912, relator filed a motion 
to quash the proceedings of the county court 
aforesaid, In respect to the establishing and 
opening of said road. Said motion, without 
caption, reads as follows: 

"Now at this day comes the relator herein and 
moves the court to quash the proceedings of 
the county court in establishing and opening 
what is known as the Alva Ripley et aL public 
road, for the following reasons, to wit: 

■'(1) That the petition for said public road 
was not filed with said county court within the 
time prescdbed by the notices for said public 
road. 

"(2) That the county court failed to take 
proof, or find that notices of the^intended ap- 
pUcation for said public road were posted ac- 
cording to law. 

"(3) The county court failed to find that said 
public road petition was signed by twelve or 
more freeholders residing in the township where 
■aid proposed public road was to be established, 
three of whom resided in the immediate neigh- 
borhood of said proposed road. 

"(4) That the said county court failed to take 
testimony, and failed to find that said proposed 
public road was a public necessity, the practica- 
bility and probable damages to the landowners 
through whose land said proposed public road 
-would pass. 

"(5) That the county court failed to appoint 
tluee disinterested freeholders to assess the dam- 
ages to the landowners as provided by law. 

"(6) That the county court failed to obtain 
Jnrisaiction in said road proceedings for other 
reasons appearing on the face of the record of 
tfac county court in said road proceedings." 

The circuit court entered Its decree In this 
c&nse, which, wlthont caption, reads as fol- 
lows: 

"And on this 16th day of October, it being the 
ninth day of the regular October term, said 
cause coming on for hearing upon respondents' 
retam and relator's motion to quash the pro- 
ceedings ot the county court as shown by said 
return, and the court after an Inspection of said 
retom, and after hearing the evidence and argu- 
ment of counsel, enters the following judgment 
la said causa, to wit (omittiiig captiwO: 



'Vow on this day, the above-entitled cause 
coming on for hearing upon the petition, writ, 
and return of respondents herein, the court hav- 
ing fully considered the return and the writ is- 
sued in this cause, togrcther with the records and 
files of the county court of said road proceed- 
ings, made a part of said return, the court, after 
duly considering the same and hearing the ar- 
gument of the counsel, finds the issnes joined in 
favor of the respondent; that said road pro- 
ceedings described in the writ to the county 
court of Vernon county, Mo., were regular and 
according to law, and that the relator is not 
entitled to the relief prayed for. 

"It is therefore' ordered, adjudged, and decreed 
bjr the court that said writ be and bereby is dis- 
missed at the cost of the relator, and that re- 
spondents have and recover their costs, and that 
execution issue therefor." 

On October 18, 1912, relator filed his mo- 
tion for a new trial for the following rea- 
sons: 

"(1) That said, finding and judgment are 
a^iust the evidence, against the weight of the 
evidence, and against the 14w under the evi- 
dence. 

"(2) That said finding and judgment is for the 
wrong party." 

The above motion was overruled, the cause 
appealed to the Kansas City Court of Ap- 
peals, and relator given leave to file his bill 
of exceptions on or before the first day of the 
next regular term of said circuit court. No 
bill of exceptions was ever filed In the cause, 
although the judgment of the court below re- 
cites that evidence was heard at the trial. 

J. B. Jonrney, of Nevada, Mo., for appel- 
lant. Scott & Bowker, of Nevada, Mo., for 
respondents. " 

RAILrEJT, O. (after stating the facts as 
above). [1] I. The circuit court had before 
It the record entries of the connty court, and 
also the documentary evidence produced be- 
fore said court. None of the oral testimony 
heard by the county court was certified to 
the circuit court to be considered with the 
documentary evidence filed by respondents. 
We know of no provision of law which au- 
thorizes a bill of exceptions to be filed In the 
county court containing the oral and docu- 
mentary evidence Introduced before said 
court, In order that It may be made a part 
of the record thereof. Appellant's abstract 
contains the following: 

"And by agreement of the parties hereto, the 
entire records and rolls of the proceedings of 
said* road case before the county court of Ver- 
non county, Mo., are to be considered a part of 
the respondents' return." 

[2] In order to consider this agreement 
and the testimony heard by the court, on the 
motion to quash, a part of the record in the 
cause, it was necessary that they should have 
been Incorporated In a bill of exceptions. 
We hold that the certified copies of the conn- 
ty court records, as well as the documentary 
evidence accompanying same, and all other 
evidence considered at the trial, should be 
Incorporated in a bill of exceptions, In order 
to become a part of the record In the case. 
Without a bill of exceptions, we can only 
consider the record proper, which tai this 



DigiLdijyGOOgle 



u 



18T B0UTBWS8TBRN KBPOBTEB 



(Mo. 



case would be the petitton, the return of re- 
spondents, the motion to quash filed by ap- 
pellant, and the Judgment of the trial court. 
Bradbury t. Smith, 181 S. W. loc. dt. 422 ; 
Stevenson v. Smith, 1T7 S. W. loc dt. 616 ; 
McMurray v. McMurray, 258 Mo. 405-41B, 
167 S. W. 513 ; Mitchell v. Sparlln, 255 Mo. 
124, 164 S. W. 205; Hanne v. Garvey, 265 
Mo. 106, 164 S. W. 210; Mahaffey ▼. Oem- 
etery Ass'n, 253 Mo. loa clt 141, 142, 161 S. 
W. 701; Bridge C!o. t. Corrlgan, 251 Ma 
667, 158 S. W. S9; Craig t. Railroad, 248 
Mo. 270, 154 S. W. 77; Harding t. BedoU, 
202 Ma 625, 100 S. W. 638. 

As no bill of exceptions was filed In the 
case, we will turn to the record proper as 
heretofore Indicated, in order to determine 
whether the trial court can be convicted of 
wior tlterefrom. 

n. Referring to. the record proper and con- 
sidering the i)etltion,, answer, motion to 
quasti, and the Judgment l>eIow, we find 
nothing wlilch would warrant us in disturb- 
ing the finding and Judgment of the trial 
court in this cause. 

[t] III. There is notlilng in the petition 
or the record which Indicates that relator 
has any Interest in the subject-matter of this 
litigation, nor does it appear why he waited 
until more than seven months after the road 
had l)een ordered opened by the county court, 
before commencing this action, even If he 
were interested in said proceeding. Having 
failed to disclose on the face of his petition 
that he has any interest in the subject-mat- 
ter of the proceedioga before the county 
court; relator was not entitled to the writ 
issued by the trial court, and hence Its ac- 
tion in dismissing same was proper under 
the law. Davison v. Otis, 24 Mich. loc cit. 
25 ; People .v. Leavltt, 41 Mich. 470, 2 N. W. 
812; Blodgett v. McVey, 131 Iowa, 662, 108 
N. W. 239; Colden v. Botts, 12 Wend. (N. X.) 
234. 

[4] IV. If relator had any interest in the 
subject-matter of this controversy, and de- 
sired to have the proceedings before the 
county court reviewed, he had an adequate 
remedy by appeal. Section 10440, B. S. 1909, 
reads as follows: 

"Appeals to the drcuit coart shall be aUow- 
ed either party from the judgment of the coun- 
ty court assessing damages, or for opening, 
dianging or vacating any road, and upon such 
appeal the drcuit court shall proceed to bear 
and determine the same anew; but no commia- 
gioner shall be appointed by the circuit court, 
nor shall any appeal, prior to the determination 
thereof in the circuit court, operate as a super- 
sedeas of the proceedings of the county court; 
and provided further, that all appeals shall be 
taken within ten days from the date of rendition 
of the judgment appealed from, and the appel- 
lant shall, before such appeal is allowed, iile 
with the clerk of the county court his appeal 
bond, payable to the county and to the appellee, 
as their interest may appear, in such sum as 
may be required by the count? court or by the 
clerk Utereof In vacation, and conditioned that 
he or they (the appellants) will fully pay or sat- 
1^ any judgment for damages or costs tiiat 
be rendered against them in the drcnit 



court, and will in all things abide the judg- 
ment of said court." 

We have heretofore held In pI<Un, unmis- : 
takable language that, where a party tias an 
adequate remedy by appeal, he cannot resort 
to certiorari proceedings in cases of tills ' 
character. State ex rel. v. Goodrich, 257 Mo. 
40-50, 165 S. W. 707 ; State ex reL v. Mos- 
man, 231 Mo. loc dt. 482. 483, 133 8. W. 
38; State ex rel. v. Reynolds, 190 Mo. 578, 
88 8. W. 877; State ex reL ▼. Woodson, 161 
Mo. 444, 61 S. W. 262; State ex reL v. Shel- 
ton, 154 Ma loc dt 681, 66 S. W. 1008, 60 
Ij. B. A. 798; State ex reL ▼. County Court 
of Nodaway Co., 80 Mo. 600. 

The Legislature of this state, in 1908 (Acts 
1909, p. 727), repealed a large portion of the 
law as It then stood relating to roads and 
bridges, and enarted new provisions in lieu 
thereof. Section 9419, B. S. 1899, was very 
materially changed by the above legislation, 
as will appear upon a comparison of section 
10440, R. 8. 1909, with said section. It la 
evident that the lawmaking power contem- 
plated in the above cluinge that proceedings 
to open roads should be fadlltated, rather 
than retarded. This case presents a prac- 
tical Illustration of the necessity for refus- 
ing a writ of certiorari on the record dis- 
closed herein. 

The relator has shown no interest in the 
subject-matter of this litigation; waited un- 
til more than seven months after the road 
had been ordered opened before applying for 
the writ; and Incurs no liability, except for 
costs. ' If he had been successful here and 
the proceedings of the county court had been 
quashed, all the efforts of the community in- 
terested in this matter would have come to 
naught On the other hand. If relator, under 
the facts disclosed by the record, had been 
required to test the validity of the county 
court proceedings by appeal, he would have 
been required to perfect his appeal within 
ten days from tue date of final judgment In 
said proceeding. He would likewise have 
been required to give a bond, etc . 

[S] In addition, however, to the foregoing, 
In order that there may be no unnecessary 
delay in cases of appeal, it Is provided that 
the .drcuit court shall proceed to hear and 
determine the case anew. In proceedings by 
appeal, the errors, if any, committed by the 
county conrt, may be corrected when the 
case reaches the circuit court where it will 
be tried anew. On the other hand, If the 
proceedings by certiorari show want Of jnria- 
dlctlou upon the part of the county court it 
would nulli^ all the proceedings before such 
conrt 

We therefore hold that on the facts dl9- 
dosed by this record, the writ of certiorari 
was Improperly Issued and properly dis- 
missed by the trial court 

V. It may be contended that the petition, 
remonstrance, and final judgment of the 
oounty court ordering the road opened con- T 
sUtuted the recorA proper .^jaiComrt, ^^i^^ IC 



Hoi 



UnJUER V. MISSOUBI WBXOEINO CX>. 



46 



tliat tills part of the proceedlnga should be 
considered as a part of the respondents' re- 
tnro, vithont any reference to the other doc- 
uments and proceedings certified to the cir- 
cuit court Without undertaking to deter- 
: iiiiiie this question, on account of the con- 
dnsions heretofore reached, as It Is not 
I necessary to do so, we would suggest that 
j tlie final Judgment rendered by the county 
; court covers all the Jurisdictional facts afflrm- 
sUvely, and vaUdates any portion of the 
record which Is silent as to such matters. 

In the very able and exhaustive opinion of 
Jadge Sturgis of the Springfield Court of Ap- 
pals, in State ex reL v. Boss, 177 Ho. App. 
lot dt 230, 162 S. W. 702, it is said: 

"It baa also been ruled that it is sofficient In 
certiorari proceedings that the Jurisdiction of 
the inferior tribunal, with which alone the re- 
view court has to deal, appears by any part of 
the record. State v. Sclmeider, 47 Mo. App. 
669, 676 ; State ex reh v. Mayor of Neosho, 67 
Ua App. 192, 198." 

Upon a full consideration of all the mat- 
ters before us, we have 'reached the conclu- 
doD that the Judgment below was for the 
right parties, and it Is, accordingly affirmed. 

BROWN, 0., concnra In result 

PER OU&IAM. The foregoing opinion of 
SAILEY, C, Is adopted as the opinion of 
Ae court All concur; BLAIB, 3., in leenlt 



HILLEB v. MISSOURI WRECKINa OQ 
et aL (No. 16981.) 

(Supreme Oeort of Missouri, Division No. 1. 
June 2, 1916.) 

1. MUNICIPAI. COBPOBATIONS 9=3769(5)— IdA- 

BiLiTT roB Dkixcts IN Stbkei— Pebsonai. 

IlfJUBT. 

Where the pr<^)erty owner had carelessly 
pDed I-beams on a portion of street between 
property line and sidewalk, the city is not re- 
lieved of liability for injuries to j)laiuti£t from a 
falling I-beam, because such portion of the street 
was unimproved. 

[Ed. Note. — For other cases, see Municipal 
Corporation^ Cant. Big. | 1600 ; Dec. Dig. «=» 
759(5).) 

2. MuinCIPAIi COBFOBATIONS 4=3819(1)— LlA- 

Biumr FOB Defects in Strekt— Nequoenck 

— ScmCIENOT OF BVIDENOE. 

EMdence held sufficient to sustain a findi&g 
of negligence where a loose, irregular, inclined 
pile of I-beams of irregular dimensions was per^ 
mitted to remain on an unimproved portion of 
the street between the property line and the 
sidewalk. 

fBM. Note. — BV>r other cases, see Municipal 
Corporations; Cent Dig. | 1739; Dec. Dig. <8=3 
819(1).] 

8. MUNICIFAI. CklBPORATIONS <&=3762(2)— LlA- 

Biurr or Cnr roB Defects of Stbebt — 

Tkmpobabt Use of Stbeet fob Loadiho 

AND Uni^adino BIatkbial. 

The role relieving the dty of liability for in- 

jDties sustained from a temporary use of the 

street in loading and unloading material does 

not apply to injuries received through an I-beam 

falling uom a pile wliidi had remained for sev- 



eral weeks on a street between the sidewalk and 
the property line. 

[Ed. Note.— For other cases, see Mnnidpal 
C!orporations, Cent Dig. {{ 1606-1608; Dec 
Dig. «=»762(2).] 

4. Municipal Oobpobationb «=>791(2)— Li- 
abiutt fob Defbots or Stbeet— Aotual 
Notice— Necessity. 

Where a pile of I-beams remained on un- 
improved portion of paved street between side- 
walk and property line for seven weeks, actual 
notice to the city was unnecessary. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. M 1647, 1648; Dec. 
Dig. <3=3791(2).] 

5. MtrNICIPAL COBPOBATIONS «=3821(16)— LIA- 
BILITY FOB Defects of Street — Constbuc- 
TivE Notice— JuBY Question. 

Where a pile of I-beams remained on un- 
improved portion of paved street between the 
sidewalk and the property line for seven weeks, 
the question of constructiTe notice to the city 
was for the Jury. 

[Ed. Note.— BV>r otber cases, see Municipal 
Corporations, Ont Dig. { 1750; Dec. Dig. <S=3 
821(16).] 

Appeal from St I^onls CJlrcnlt (3ouit; Hugo 
Mnench, Judg& 

Action by GeneTleTe Miller, a minor, by 
John S. Miller, next friend, against the Mis- 
souri Wrecking Company and. the City of St 
Louis. From the order granting the plaintiff 
a new trial, the defendant City of St Louis 
appeals. Affirmed and remanded. 

William B. Baird and Truman P. Young, 
both of St Louis, tor appellant Wm. F. 
Woemer and Emerson B. Schnepp, both of 
St Louis, for leaiwndent 

BLAIR, 3. Respondent sued the Missouri 
Wtccking Company and the city of St Louis 
for damages for personal injuries. The Jury 
returned a verdict for $1,900 against the 
wrecking company, and a verdict in favor of 
the dty. Tlie wrecking company's motion for 
new trial was sustained on the ground the 
damages allowed were exoesslve, and re- 
spondent's motion for new trial was sustain- 
ed, as against the city, because of error In 
an Instruction. The city appealed. 

The Missouri Wrecking Company's build- 
ing adjoins O'Failon street at Its IntersAtlon 
with Jefferson avenue. Between this build- 
ing and the sidewalk on the south side of 
O'Failon street Is a space of seven feet and 
seven inches, forming a part of the street 
but not improved in any way. Next the wall 
of Its building, the wrecking company had 
piled a large number of I-beams. When she 
was Injured, respondent, a girl of 14, was 
standing at the inner edge of the sidewalk on 
the south side of O'Failon street, and imme- 
diately in front of the pile of beams men- 
tioned, watching a procession moving along 
Jefferson avenue. She held In her arms her 
baby sister. Others were wat<^lng the same 
procession. A neighbor's child was sitting 
upon the pile of beams. In response to his 
mother's caU, this dkild arose, and one of the 
beams rolled down upon respondent's foot, 



I tOBlo and KBT-NUHBBB In sU iUr-N«l»h«r«d nsssts.SB* Intexw 



Q,gitizeciiDy.G0bgle 



46 



ISr SOUTHWDSTBRN REIPOBTSB 



CMo. 



Injuring her. Other facts pertinent to qaeB> 
tlons presented by appellant's connsel are 
stated in the course of the opinion. 

Appellant contends that: (1) In specified 
particulars the evidence ia insufficient; and 
(2) the instruction the court Iield erroneous 
is sound. 

[1] I. It Is contended the f&ct the beams 
were piled upon an unimproyed part of the 
street exculpates the city. "The obligation 
of a city to keep its streets and sidewalks in, 
repair is not limited to defects existing in 
the street" Campbell v. ChiUicothe, 239 Mo. 
loc. dt 461, 144 S. W. 408, 39 L. E. A. (N. 
S.) 451, and cases cited ; Shlppey r. Kansas 
City, 254 Mo. 1, 162 S. W. 137. These cases 
show cities are held liable for injuries re- 
sulting from their negligently suffering struc- 
tures and excavations to exist on private 
property adjacent to a street This rule is 
broad enough to include that portion of the 
street shown in this case to lie between the 
sidewalk and the property line. 

[2] II. It is urged there is no evidence the 
beams were negligently piled. There was 
evidence the beams mentioned were I-beams 
of lengths ranging from 6 to 14 feet; that 
they wore of different sizes as well as lengths, 
the webs being of different widths, and there- 
fore the flanges being of different widths; 
they were loosely piled and were not laid 
evenly, one upon the other, but, to some ex- 
tent, were piled irregularly and somewhat 
crosswise; the pile was 4Vi feet lilgh and 
that wide or wider at the base, and the face 
of the pile fronting the street was slanting, 
the degree of slant being variously indicated 
by the witnesses; the top of the pile was 
two or more feet wide. 

From this testimony it la reasonably in- 
feraUe this pile of I-beams was of unstable 
equilibrium, and that the falling or rolling 
down of some of them was reasonably to be 
anticipated. In the case of Bowman v. Foun- 
dry Co., 226 Mo. 53, 125 S. W. 1120, the peti- 
tion charged that a pile of pig iron which fell 
and injured plaintiff "had been so piled and 
placM as that it was liable to fall over at 
any time," but plaintiff offered no evidence 
tending to show any defect in the piUng of 
the iron. The court indicated tliat a showing 
the pile was leaning or was not compact 
should have been made, or that expert tes- 
timony showing, if true, that the height of 
the pile rendered it dangerous, was neces- 
sary. The tendency of the evidence in this 
case to show the loose, irregular, and slant- 
ing piling of beams of irregular lengths, 
widths, thicknesses, and weights meets the 
requirement of the rule in the Bowman Case. 
The evidence was sufficient to take the case 
to the Jury, so far as concerns the showing 
as to the negligent piling of the beams. 

[3] III. It ia dear the use of the street 
shown in this case cannot be held, as a mat- 
ter of law, to fall within the rule permitting 



the temporary use of a street in loading and 
unloading material, etc Corby v. Railroad, 
150 Mo. loc. dt 469, 52 S. W. 282. Further, 
that rule does not protect from damages for 
a use which is In its nature negligent and en- 
dangers those lawfully using the street Ob- 
viously, if the pile of beams was dangerous 
by reason of being negligently made, and re- 
mained for weeks near the sidewalk, it does 
not fall within the prlndple permitting tem- 
porary use for purposes of the sort men- 
tioned. 

[4, 1] IV. It iq urged there was no evidence 
tending to show notice to the dty. Tliere 
was evidence the pile of beams in question 
stood at the same place for seven or more 
weeks before respondent was injured. It 
was upon a strip of ground adjacent to the 
sidewalk upon which respondent was stand- 
ing, which sidewalk was a part of a paved 
and traveled city street. Actual notice was 
not necessary, and seven weeks is a suffident 
time, in the circumstances, at least to take 
the question of constructive notice to the 
Jury if the pile of beams tn fact presented 
the appearance plaintiff's evidence tended to 
prove it did, Shlppey v. Kansas City, supra ; 
Straub V. St Louis, 175 Mo. loc. cit 416, 75 
S, W. 100. It also follows from the author- 
ities dted that the instruction requiring ac- 
tual notice was erroneous. 

The Judgment is affirmed, and the cause re- 
manded. All concur. 



DONOVAN V. GIBBS. 

(Supreme Court of Missouri, Division No. 1. 
June 2, 1916.) 

1. Attachmbnt iS=265— Attachmbnt Against 

NONBESIDBNT — DlSSOLtTTION BT ANSWES TO 

Merits— Statxjtb. 

Under Rev. St 1909, i 2298, authoririns 
attachments without bond against nonresidents, 
but providing that, when any writ of attachment 
has issued against a nonresident and plaintiff 
has given no bond, the attachment sliall be dis- 
BolvM as of course upon defendant's entering 
his appearance and iiliug his answer to the mer- 
its, a nonresident defendant's plea to the juris- 
diction did not affect the attachment 

[Ed. Note. — For other cases, see Attachment 
Cent Dig. H 045-947; Dec Dig. <8»266.] 

2. Attachment ®=»265— Attachment Against 
Nonresident— Dissolution by Anbweb to 
Merits— Statute— "Or Coubse." 

Under Rev. St 1909, i 2298, authorizing 
attachments without bond against nonresidents, 
but providing that when any writ of attach- 
ment has issued against a nonresident and 
plaintiff has given no bond, the attachment shall 
be dissolved as of course upon defendant's enter- 
ing his appearance and Bhng his answer to the 
merits, where a nonresident defendant, against 
whom attachment had issued without bond, filed 
his answer, the attachment was not automatical- 
ly dissolved, it being incumbent for defendant 
to move for dissolution, since "of course" means 
any action or step taken in the course of jn- 
didal proceedings, which will be allowed by the 



»For Mkor owM Me nm* toplo and KET-MVliBEB In all KwNwntwred OlgMts ud IndMM 



joogle 



Mo) 



DONOVAN r. GIBBS 



47 



coort apbn men appUcCtion vithont inanir; 
or oontBBt* 

[Ed. Note. — ^For other easea, see Attachment, 
Gent. Dig. M 94&-947: Dec. Dig. <3=»265. 

For other definitions, see Words and Phrases, 
First and Second Series, Of Coarse.] 

3. EriDENCB «=»82— PbISUMFTIONB— JUDICIAIi 

Pboceedihob. 

In suit to qnlet title, where defendant's ti- 
tle depended on the ralidity of a sale under 
JDdgment in a suit bv attachment against the 
I>art7 who was plainnS's and defendant's com- 
mon sotfrce of title, the Supreme Court must 
presume that the trial court in the attachment 
rait acted in accordance with the law. 

[Ed. Note.— For other cases, see Evidence, 
Cent Dig. { 104; Dec. Dig. <8=>82.] 

4. AtIACHHENT 4=s>266— ATtACHUBNT AOAUIST 

NosBi:8iD«Ni>—Di8Soi.tJTioN— Statute. 
Under Rev. St 1909, § 2298, authorizing 
attachments without bond against nonresidents, 
bat providing that when as? writ of attach- 
ment has issued against a nonresident and 
plaintiff has given no bond, the attachment shall 
be dissolved as of coarse upon defendant's en- 
tering his api>earance and filing bis answer' to 
the merits, in anit by attachment against a non- 
resident in which plaintiff gave no bond, 
where the cause had oeen taken under advise- 
ment by the court when defendant's answer was 
filed, the filing of the answer, without leave and 
witiiout setting aside the submission of the case, 
did not render applicable the proviso of the 
statDte, though construed to automatically dis- 
solve the attachment upon filing of defendant's 
answer. 

[£d. Note. — For other cases, see Attachment 
Cent Dig. {{ 945-947; Dec Dig. «=92650 

AppeaA from Clrcalt Court, Dent Coiuty; 
L. B. Woodside Judge. 

Suit by Walter Donovan against James H. 
Gibbs. From a ' Judgment for defendant, 
plaintiff appeals. Judgment affirmed. 

6. C. Dalton, of Salem, for appellant W. 
F. Elmer, of Salem, for respondent 

BLAIB, J. Tbis la a suit under section 
2535, B. S. 1909, to adjudge and quiet title 
to lot 2 of the northwest quarter and the 
north half of lot 2 of the southwest quarter 
of section 81, township 35 north, of range 5 
west. In Dent county. The Dent circuit court 
rendered Judgment for defendant, and this 
appeal followed. B. P. Vickery is the agreed 
common source of title. Appellant claims 
through mesne conveyances from B. P. Yick- 
ety, having obtained a deed in September, 
1909. Bespondent claims title under deed 
from St^bens and Eorsman, whose title de- 
pended upcm the ralidlty of a sale under 
Judgment in a suit by attachment they be- 
gan against B. P. Vickery November 5, 1908. 
Ute ground of attachment was Vlckery's non- 
tesidence. No attachment bond was given. 
Service was had by publication. On April 
21, 1909, Vickery, appearing solely to ques- 
tion the jurisdiction, filed a motion in the 
canse. On April 22,. 1909, alias summons 
was swred in Dent county on Vickery, who 
was temporariliy there. The catise was coa- 
tlnned, and was heard at the nest term of 
court On November 29, 1909, Vickery filed 



a general denial by imj 'Of answ^, ^o- rul- 
ing having been had or asked on his pica to 
the Jurisdiction, and no leave to file answer 
having been asked or given so far as tlie 
record show& On November 30, 1909, the 
court rendered Judgment In the attachment 
proceedings reciting: 

"Now on this day, this causa coming on to be 
heard, the judge of this court, having previously 
beard the evidence of witnesses and the argu- 
ment of counsel, and having taken the case un- 
der advisement [italics ours], finds the issues 
for the plaintiffs in the sum of two liundied 
dollars.." 

Then follovra an ordinary Judgment by at- 
tachment declaring a lien upon the land at- 
tached in that suit and involved In this. 
Vickery called neither his plea nor his an- 
swer to the attention of the court in that 
case, nor did he move to dissolve or ask dls-. 
solution of the attachment or vacation of the 
attachment proceedings. Neither did he ap- 
peal from the attachment Judgment Sale 
was regularly made under that Judgment, 
and ' Stephens and Horsman purchased the 
land and took possession. Subsequently, for 
full price, they sold to detoidant, who took 
possession and thereafter expended nearly 
$2,000 in money and labor improving the 
land, erecting a dwelling, barns, fences, dig- 
ging wells, clearing, making a paaA, etc. 
When attached the land was subject to a 
deed of trust for $600 which Stephens and 
Horsman paid, and which sum appellant does 
not ofCer to repay. April 19, 1909, some 
months after the attachment suit was begun, 
and some time after service by publication 
was liad, B. P. Vickery and wife executed a 
deed, recorded April 23, 1909, purporting to 
convey the attached pr(n»erty to Wm. B. 
Vickery, who lived in the same town in IIU- 
nois with B. P. Vickery. May 3, 1909, Wm. 
B. Vickery and wife conveyed to Anna B. 
Vickery, also of the same town. September 
8, 1909, Anna B. Vickery and husband, B. 
P. Vickery, who had then removed to South 
Bend, Ind., in consideration of $1, conveyed 
to appellant, also of South Bend. Appellant 
then had knowledge of the pendency of the 
attachment suit Neither appellant nor any 
one of the Vickery s testified in this case. 

[1] Appellant's sole contention is that the 
filing of Vickery's answer In the attachment 
suit on November 29, 1909, ipso facto instant- 
ly dissolved the attachment, and as instant- 
ly freed the attached land from the lieu, and 
that his title under his deed of September 
8, 1909, is consequently one in fee simple, 
unaffected by the sale in the attachment pro- 
ceedings. This contention is grounded upon 
the proviso in section 2298, B. S. 1900. That 
section authorizes attachments without bond 
against nonresidents, but provides that: 

"When any writ of attachment has issued 
against a nonresident, and the plaintiff has giv- 
en no bond, the attachment snail be dissolved 
as of course upon the defendant entering his 
appearance and filing his answer to the merits 
of the case." 



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It la obTloiifl tbe plea to the jurisdiction 
did not aSect the attachment, since the stat- 
ute makes an "answer to the merits of the 
case" a condition precedent to whatever re- 
lief the proviso affords one within Its scope. 
Did the filing of tbe answer automatically 
dissolve the attachment? 

[2] L In Brown v. McKown, 265 Mo. S35, 
176 S. W. 1043 et seq., we recently had oc- 
casion to consider the effect of the proviso 
In section 2298, but what was ssdd in that 
case was not directed to tbe point appellant 
now presents. The question here is whether 
the quoted language of tbe proviso means 
that the filing of an answer to tbe merits, in 
a case to which it applies, of Itself.'dlssolves 
tbe attachment without application to or ac- 
tion by the court, and without any further 
step of any kind. The words to be construed 
are "shall be dissolved as of course." Had 
tbe Legislature intended to provide that up- 
on the filing of an answer in such a case the 
attachuieut should, whoi answer was filed, 
thereby stand dissolved, and tbe attachment 
proceedings thereby stand vacated, we think 
it would have used words clearly stating that 
meaning. Tbe language actually used ordi- 
narily implies further action by the court or 
the party entitled to the benefit of such a 
provision. Black's Law Dictionary thus de- 
fines tbe words "of course": 

"Any action or step taken in the course of 
judicial proceedings wnich will be allowed bj/ the 
court upon mere application, without inquiry 
or contest, or wtiich may be effectually taken 
without even applying to the court for leavci 
is said to be 'of course.' " (Italics ours.) 

Bouvier'9 Law Dictionary defines the same 
words thus: 

"That which may he done in the course of le- 
gal proceedings witboTit makiug any application 
to tbe court ; that which is granted by the 
court, without further inquiry, upon it* being 
asked." (italics are ours.) 

In Yates v. People, 6 Jobna (N. Y.) loe 
dt 359, it was held that the words "of 
course" mean "according to the course and 
practice of the court" This was said in 
discussing writs Issuable of course. In Mer- 
chants' Bank of St Joseph t. Crysler, 67 
Fed. loc. dt 390, 14 C. C. A. 448, In discus- 
sing motions "of course" In equity, tbe Unit- 
ed States Circuit Court of Appeals for this 
drcuit said such motions were those granted 
"without the court being called upon to In- 
vestigate the truth of any allegation or sug- 
gestion upon which they are founded." In 
Stoddard r. Treadwell, 29 Cal. 281, It was 
held that a statute providing for costs fol- 
lowing Judgments "of course" meant "as a 
matter of right." 

These authorities warrant the conclusion 
that the language of the proviso Is not sus- 
ceptible of the meaning now attributed to It 
by appellant We hold that. If in an attach- 
ment proceeding defendant desires the bene- 
fit of tbe proviso of section 2298. R. S. 1909, 
It la Incumbent upon him to move therefor. 
One effect of the dissolution of an attach- 



ment Is a right to a vacation of all proceed- 
ings "touching the property and effects ab- 
tached and tha garnishee summoned" (sec- 
tion 2342, R. S. 1909), and this also Implies 
court action. That such attachment defend- 
ant Is entitled, upon answering, to such dis- 
solution of the attachment and vacation of 
proceedings, and may secure it upon applica- 
tion, does not sustain the contention that tbe 
filing of the answer in Itself worlds a dis- 
solution and vacation, unless we disregard 
the principle laid down in the authorities 
dted. 

[S,4] 2. We must presume the trial court 
acted in accordance with the law. Therefore, 
even It It could be conceded ai^iellant's con- 
struction of the statute Is correct, yet the 
record shows the cause was taken under ad- 
visement ^me time prior to the rendition 
of Judgment on November 30, 1909. The rec- 
ord being silent, so far as appears here, as 
to the date on which the cause was taken un- 
der advisement, we can presume, in aid of 
tbe Judgment, that It was under advisement 
when Vlckery's answer was filed on Novem- 
ber 29, 1909. Indulging this presumption, 
we are of the opinion that in such drcum- 
stances the filing of the answer without leave 
and Tcithout setting aside the submission 
could not render applicable the proviso of 
section 2298, even though It be construed as 
appellant desires. 

The Judgment Is affirmed. All concur; 
BONO, J., In paragraph 2 and result 



CRATON V. HUNTZINGER. (No. 19130.) 

(Suprema Court of Missouri, Division No. 1. 
June 2, 1916.) 

1. CotJBTS «=>231(51) — j0Bi8DicnoiT — 8u- 

PBEMK CoUBX^AMOUNT IN C0NTBOVER8T. 

Where plaintiff sued for $25,000 and secur- 
ed judgment for $250, and defendant was satis- 
fied, but plaintiff asked for and obtained a new 
trial, the order for which tbe court refused to 
set aside on defendant's motion, from whicb 
defendant appeals, if the new trial was properly 
granted, the case stands on tbe original demand, 
and transfer frum tbe Court of Appeals to the 
Supreme Court was justified. 

[Ed. Note. — For other coses, see Courts, Cent 
Dig. { 659 ; Dec Dig. «=>231(51).] 

2. Appkal and Bbbob «=>840(1)— Rkvikw— 
Scope— Question Appealed Fsou— Amount 
of Recovebt. 

Where defendant in personal injury suit ac- 
quiesced in judgment for plaintiff, the judgment 
was conclusive as to his negligence and plain- 
tiffs freedom from contributory negligence, and 
tbe only question on plaintitTs appeal was the 
adequacy of tbe judgment 

[Ed. Note. — For other cases, see Appeal and 
Error, Dec. Dig. <g=>840(l).] 

3. Evidence ^=3192— Admissibiuty— Dehon- 
Bi&ATivE Evidence— AuTOPTio Pbofebencb. 

In a personal Injury suit, autoptic prefer- 
ence of the plaintiff to show the extent of his 
injuries is of probative force, which may be 
conclusive. 

[Ed. Note.— For other cases, see Evidence^ 
Cent Dig. { 677; Dec. Dig. <e=3lS2.] 



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49 



i DUCAOIS ^S>18a(l)— EVIDKRCB— PSBSONAI, 

Injuries. 
Evidence in suit for personal injuries in ac- 
cident caused by plaintieTs horses becoming 
fricbtened by d^endant's automobile, held to 
sustain plaintiS's allegations as to extent ol in- 
jories. 

(Ed. Note.— For other cases, see Damages, 
Cfnt. Dig. H 003, 605, 608; Dec. Dig. «=» 
1S5<1).] 

6. Davaoes <e=>lS2(15)— Pebsonai. Ikjukhss— 

Inadequact or Damaoes. 
Verdict for $2S0 for numerons injuries to 
bod;, bead, and face, causing permanent dis- 
fignrement and temporary confinement, was 
grossly inadequate. 

(Ed. Note.— For other cases, see Damages, 
Cent Dig. i 396; Dec. Dig. <8=»132(15).] 

ft. New Tbial €=>75(4)—Gbound8— Personal 

LKJUBUES— Ilf AUSQDACY OF DaMAOES. 

Where damages awarded by verdiot are 
r^wsly inadequate, it is the doty of the court 
to interfere, and new trial may be granted. 

[Ed. Note.— For other cases, see New Trial, 
Cent. Dig. { 152; Dec. Dig. <S=>75{4).] 

T. Damaoes «=396 — Pebbonax Injttbiks — 

Amount or Compensation. 
In a personal injury action, plaintiff, on 
proTine his case, is entitled to full compensation, 
regardless of what defendant should pay. 

[Ed. Note.— For other cases, see Damages, 
Cent. Dig. S! 222-229 ; Dec. Dig. <&=>d5.] 

& Appkai, and Ebrob <S=>1068(1)— Scope of 

Review— Harmless Erbob— Inbtsuctions— 

Cure bt Vebdict. 

Plaintiff, who recovered judgment, cannot 

complain of erroneous instructions as to negli- 

cence or contributory negligence, such queetions 

having been resolved in bU favor by the jury. 

[Ed. Note.— For other cases, see Appeal and 

Error, Cent. Dig. § 4225 ; Dec. Dig. «=>10()8a) ; 

Trial. Cent Dig. H 475. 480, 525.] 

9. Appeai. and Errob €=s>856(5)— Scope of 
Review— GBOtrtiDs or Decision. 

Where the court, in sustaining motion for 
new trial on specific grounds which were erro- 
neous, impliedly overruled all other grounds, it 
w.-is the party's right to have such other grounds 
examined on defendant's appeal from the order 
panting new trial. 

[Ed. Note.— For other cases, see Appeal and 
Error. Cent. Disr. if 3408, 3410, 8423, 3424; 
Dec Dig. <8=>856(5).] 

10. Appeal and Ebbor <&=8.'>6(5)— Scopb o* 
Review— Ground of Decision. 

If tiie motion for a new trial contains sev- 
Eral pounds, and the court sustains it as to 
>ae ground, without passing upon the others, the 
»urt on appeal will not overturn its decision, 
rven if the ground on which It was sustained 
ras not well taken, provided the record contains 
mbstantial evidence that the motion for a new 
rial ought to have been sustained upon some 
ither ground alleged therein. 

[Ed. Note.— For other cases, see Appeal and 
Jrror, Cent. Dig. {g 3408, 3410, 3423, 3424; 
)ec Dig. «=»856(5).] 

Appeal from Circuit Court, Charlton Coun- 
y ; Fred Lamb, Judge. 

Action by M. W. Craton against Noah 
luntzlnger. Judgment for plaintltf, and 
ronj the order granting new trial on the 
JaintlCTs motion, and denying motion to set 
side sadi order, defendant appealed to the 
3ourt ot Appeals, which transferred the 
a use to the Supreme Court (177 S. W. 816). 
lotion to remand the cause to the Court of 



Appeals denied, and judgment ofBrmed, and 
cause remanded. 

This action was originally brought In Car- 
roll county. Mo., by plaintiff, a practicing 
physician, against defendant, the owner of 
an automobile, for damages on account of 
Injuries sustained through the alleged neg- 
ligence of defendant In operating his ma- 
chine, through his nephew, in such manner 
as to cause plalntlfT's team to become un- 
manageable, break his buggy wheel, throw 
him to the ground, and thereby cause htm 
permanent injury. Plaintiff, upon a trial of 
said cause in the circuit court of Carroll 
county aforesaid, obtained a verdict before 
a jury for $5,000. Defendant duly appealed 
the case to the Kansas City Court of Ap- 
peals. The latter, on account of errors oc- 
curring during the progress ' of the trial in 
the circuit court aforesaid, reversed and re- 
manded the case. The opinion In above 
cause was written by Judge Ellison, and will 
be found reported In 163 Mo. App. 718, 147 
S. W. 612, and following. A change of venue 
was taken, and said cause transferred to the 
Charlton circuit court, where another trial 
was hod before a jury, resulting In a verdict 
and judgment for plaintiff for $250. 

Being dissatisfied with the result of the 
last trial, plaintiff. In due time, filed his mo- 
tion for a new trial. The latter, among oth- 
er grounds, contains the following: 

"Third: Because the verdict is against the 
law and the evidence. 

"Fourth: Because the verdict is against the 
eviHence and against the greater weight of the 
evidence. 

"Fifth: Because the amount of damages 
awarded pitnintiff by the verdict of the jury, un- 
der the evidence and Instructions of the court, 
are insufficient and gros."!ly inadi'iinute. • • • 

"Ninth: Because the court erred in giving in- 
structions • • • 12 • • • 16 on behalf 
of the defendant and over the objections of plain- 
tiff." 

On March 27, 1913, the Cliartton circuit 
court, by its entry of record, disposed of 
said motion for t^ new trial as follows: 

"Now come the parties hereto and the motion 
for new trial heretofore filed is tnlten op and 
heard by the court, and by the court snstained, 
on account of givine instructions No. 12 and 16 
given on part of defendant, and on account of 
excluding evidence of Murl Burruss, Flora Bur- 
russ and W. G. Holms, offered by plaintiff in 
rebuttal and objected to by defendant." 

Defendant, in due time, filed his motion to 
set aside the above order, which was over- 
ruled and on appeal granted him, to the 
Kansas City Court of Appeals, from the or- 
der and judgment of said court In sustaining 
plaintiff's motion for a new trial, and grant- 
ing plaintiff a new trial. 

On May 12, 1915, appellant filed in the 
Court of Appeals aforesaid a motion to 
transfer the cause to this court — after Judge 
Ellison had filed his opinion on May 5, 1915, 
afilrmlng the judgment of the Charlton cir- 
cuit court. In granting plaintiff a new trial 
— on the ground that the amount In Aia- 



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187 SOUTHWBJSTBErir KBPORTBB 



(Mo. 



pnte is In excess of f 7,500, etc This motion , 
was resisted by respondent, and briefs were 
filed in the Court of Appeals by both plain- 
tiff and defendant on this subject Upon a 
full consideration of this question. Judge 
Trimble, in behalf of the Court of Appeals, 
in which all of the judges of said court con- 
curred, filed an opinion, transferring said 
cause to this court. Judge Trimble's opinion 
will be found reported in 177 S. W. at pages 
816 ^nd following. The mandate of the 
Court of Appeals, and the record in said 
cause, were filed in this court oa June 28, 
1915. 

On October 12, 1915, respondent filed here- 
in a motion to remand said cause to the 
Court of Appeals, on the ground that the 
latter alone has jurisdiction of the cause. 
Suggestions in support of above motion were 
filed by plaintiff.. On the same day, respond- 
ent filed bis motion to advance said cause, 
which was sustained, and the case set for 
argument in this division on April 13, 1916. 

The cause was argued in this court on 
above date by counsel for both plaintiff and 
defendant. 

W. W. Rucker and Roy W. Rucker, both of 
Keytesvllle, and Lozler & Morris, of Carroll- 
ton, for appellant. J. A. Collet, of Salisbury, 
and James F. Graham and Jones & Conkling, 
both of Carrollton, for respondent. 

BAILEY, O. (after stating the facts as* 
above). [1] I. It becomes necessary for us 
at the outset to determine whether this 
court has jurisdiction over the cause, or 
whether respondent's motion to transfer 
same to the Court of Appeals should be sus- 
tained. The conclusion reached In the very 
clear and logical opinion delivered by Judge 
Trimble in the Court of Appeals, sustaining 
appellant's motion to transfer the cause to 
this court, reported in 177 S. W. 816 et seq., 
meets with our approval. 

In the case before us, the defendant was 
satisfied with the judgment for $250 render- 
ed against him. The plaintiff was dissatis- 
fied with same judgment and asked for a 
new trial. The court below sustained plain- 
tiff's motion and granted" him a new trial. 
If this action of the court be sustained, plain- 
tier's cause of action for |25,000 stands as 
though no former trial had ever taken place. 
On the other hand, if defendant's contention 
is well founded, and it should appear to the 
Appellate Ck>urt that a new trial was im- 
properly granted, then it would clearly ap- 
pear that the amount In dispute was only 
$250, and the Court of Appeals alone would 
have jurisdiction. The defendant, however, 
appealed from the order granting respondent 
a new trial in the case. 

In State ex rel. Patton et al. v. Gates, 
Judge, 143 Mo. 63, U S. W. 739, the trial 
court directed a verdict for defendant on 
the merits. Plaintiffs filed a motion for a 
new trial, which was sustained and defend- 
ant appealed from the order granting plain- 



tiffs a new trial. Plaintiffs thereupon ap- 
plied to this court for a writ of mandamus, 
to compel respondent to proceed with the 
trial of said cause, as judge of the trial 
court, on the ground that no appeal Inmd 
had been given, and by reason thereof, the 
proceedings in said cause had not been stay- 
ed by said appeal. The question before ns 
was whether, under the statute, an appeal 
from an ord^r of the circuit court granting 
a new trial without bond, stayed the trial 
of the cause in the circuit court, pending de- 
fendant's appeal from the . order granting 
plaintiffs a new triaL In referring to sec- 
tion 2246, R. S. 1889, as modified by the 
acts of 1S91, 143 Mo. 68, 44 6. W. 741, Judge 
Brace, speaking for the Supreme Coart, 
said: 

"Thereupon it becomes the duty of the court 
to make an order allowing the appeal, as requir- 
ed by section 2246, supra. The effect of which 
order is to transfer the jurisdiction of the case 
from the drcuit court to the appellate court, 
from the operation of wbidi, however, is except- 
ed the execution on the judgment appealed from 
in all cases except those stated in section 2249. 
In other words, the effect of the order granting 
the appeal is to suspend all further exercise of 
judicial functions in the case by the court from 
which the appeal is taken and to transfer the 
same to the appellate court, where further 
judicial proceeding is continued until the case 
IS disposed of." 

The above announcement pf the law relat- 
ing to this subject has been followed by the 
subsequent decisions of this court. Young v. 
Young, 175 S. W. loc. dt 586; Reed v. 
Bright, 232 Mo. loc dt 415, 134 S. W. 653, 
and cases cited. 

It logically follows from the foregoing cas- 
es that if the entire controversy between 
plaintiff and defendant is transferred to the 
appellate court by virtue of defendant's ap- 
peal herein, then the rights of both liti- 
gants must be considered in disposing of 
the case. If defendant's tlteory alone be 
considered and sustained, the trial court 
had no right to set aside the verdict of the 
jury for J250. Considered without any ref- 
erence to plaintiCTs rights, the Court of Ap- 
peals would have exclusive jurisdiction of 
the case. On the other hand, if the appeal 
be considered without regard to the rights of 
defendant and based alone upon the rights 
of plaintiff, then this court would have juris- 
diction, as the amount in dispute, would be 
in excess of $7,500. 

In the case before us, the plaintiff is 
strenuously insisting that his Judgment for 
$250 has been set aside, and that he now 
occupies the same position which he held 
before the trial occurred, and is entitled to 
assert his claim for $25,000. As the case 
now stands, the defendant is seeking to have 
the original judgment for $250 reinstated. 
The entire record has been brought before 
the court, in order that the tribunal exercis- 
ing appellate jurisdiction may pass upon the 
relative rights of both parties to the litlga- . 
tion. In order to determine these rights, j\(> 
It will be necessary to consider plaintiff's <^ 



Uo.) 



OBATON T. HUNTZZKOBR 



61 



demand for |2S,000, u well as defendaibt's 
claim, to the effect tbat the original judg- 
ment for $290, Bbbuld be reinstated. 

Tbe conclusion reached by the Court of 
Appeals In' transferring the cause to this 
court Is not without precedent to support It. 
In McCarty v. St Louis Transit Co., 192 
Uo. 306, 91 S. W. 132, tbe plaintiff's hus- 
band, a member of the fire department of the 
dty of St. Louis, while earning good wages, 
vras killed, on December 15, 1902, through 
the negligence of defendant, and bis widow 
brongfat suit for $5,000 danaages, under sec- 
tions 2865 and 2866, R. S. 1899. This court 
had Jurisdlctiou at the date of sold accident, 
where the amount In dispute was In excess 
of ^,500. The Jury returned a verdict In 
faror of plaintiff for $500, and Judgment 
was entered thereon. Plaintiff filed her mo- 
tion for a new trial, and claimed therein 
that the damages awarded her were Inade- 
quate. The trial court sustained plalntUTs 
motion on the above ground and granted 
ber a new trial. The defendant there, as In 
the case at bar, appealed from the order 
granting a new trial, and the appeal in said 
cause was granted directly to this court. 
Dor Jurisdiction was not questioned by either 
[larty to the action, but Judge Lamm, In a 
very able and eloquent opinion, affirmed the 
}adgment of the trial court in granting 
plaintiff a new trial. 

We are therefore of the opinion that the 
Kansas CJity Court of Appeals was fully jus- 
tified, under the laws of our state, In trans- 
ferring the cause to this court foir final de- 
termination. Respondent's motion to trans- 
fer the case back to the Court of Appeals 
aforesaid la accordingly overruled. 

II. We have read with much Interest the 
able and exhaustive opinion promulgated by 
Jndge Ellison of tbe Court of Appeals, on 
tbe merits of this controversy, and hereby 
adopt It as the opinion of this court, with a 
few supplemental observations after the con- 
clusion of same. Said opinion is in words 
and flgnres following: 

In the Kansas dty Cocrt of Appeals, Oc- 
tober Term, 1914. M. W. Craton, Eespondent, 
T. Koah Huntzlnger, Appellant No. 10U69. 
Appeal from Chariton Circuit Court 

"Plaintiff, a practicing physician, had been 
to see a patient and was returning borne along 
the public road In a two-horse buggy. On the 
way, he met with an automolHle, owned by de- 
fendant, in which were defendant's nephew, bis 
danghter, a farm band, and bimselL The ma- 
chine was being driven by the nephew. By rea- 
son of defendant's negligence the team became 
badly frightened, whirled abort around, crushed 
down the front wheel of the buggy, and ran 
away. Plaintiff was thrown out receiving se- 
rious injuries. He brooght this action for dam- 
ages and recovered judgment for $5,000. On ap- 
peal to this court that judgment was reversed 
and the caoae remanded for new trial on account 
of error in an instruction. See 163 Mo. App. 
'18 [147 S. W. 612], where the facu are stated 
in more detail A change of venue was taken 
and the caae sent to Cnariton county, where 
another trial was bad resultinc in a verdict and 
jndgment for plaintiff for $250. Being dissatis- 
fied with that aouHwt, be filed a motion jtor new 



trial, which was granted, and defendant appeal- 
ed from that order. | 

[2-4] "PlaintifTs motion for new trial set up 
several reasons, among them that tbe verdict 
was against the evidence and that the damages 
awarded were 'insuflScient and grossly inade- 
quate under the evidence and instructions' ; and 
the question that assignment presents is tlie 
principal one in the case. The verdict for plain- 
tiff and defendant's acquiescence therein conclu- 
sively establish the tatter's negligence and the 
former's freedom from contributory negligence, 
which, as to tbe facts, only leaves open the ex- 
tent and character of plaintiff's injuries. As to 
these, we think that practically they were con- 
ceded at the trial to be as was shown by the evi- 
dence in plaintiff's behalt By that evidence it 
appeared that plaintiff was rendered unconscious 
by his fall from the buggy. He was bleeding 
in great profusion ; tbe blood running into his 
throat rendered breathing extremely difScult 
He was carried to a farmhouse, where a cot 
was brought into the yard and he laid upon it 
Dr. TuU was called, and while awaiting him oth- 
ers rendered what assistance they could by bath- 
ing his face and head. His head was found to 
be cut to the bone from an inch np in the hair 
to an Inch below his cheek bone. His nose was 
broken and mashed and so torn that one part of 
it hung over on his cheek. His lip was masbed 
so as to partially paralyze it, rendering free 
and easy speech more difficult. Dr. TuU sewed 
the wound on the head and jaw and likewise put 
stitches in tbe nose. His face was cut in va- 
rions places, leaving scars. The septum of the 
nose, which was stated to be the bone or car- 
tilage which supports it and divides tbe nostrils, 
was broken so that it is now out of line, leav- 
ing the nose crooked and the nostrils so obstruct- 
ed that breathing is difficult, except through the 
mouth. In putting In place tbe torn part of the 
nose, there was left what the witnesses called 
a small 'tit which hangs down.' He was In bed 
for ten days and endnred much pain and suffer- 
ing. One or more doctors attended him and his 
condition was such up to the time of the last 
trial that occasionally he was compelled to seek 
the aid of a physician, and the shock has left 
him in a nervous condition that causes him 
much inconvenience. His wounds were descrit>- 
ed not only by himself, but by other physicians 
who were conceded by defendant to be competent 
men in their profession. The pits or small 
scars on the face, the larger scar coming from 
the scalp onto the Jaw, the crooked nose and the 
tit thereon, were pointed out to the jury. The 
proof was indubitable; in fact, it was not dis- 
puted at the trial, that his defacement and his 
nasal injury were permanent bnt that relief for 
the latter difficulty probably could be had by 
a surgical operation. 

"Defendant contested the case on the ground 
that he was not guilty of negligence, and that 
plaintiff was guilty of contributory negligence. 
He did not introduce any evidence to combat 
plaintiff's injuries, nor to minimize their extent. 
He did not even cross-examine plaintiff's witness- 
es in that regard, save by asking one of the phy- 
sicians if the nose could not be helped by a sur- 
gical operation. Not only that, but the record, 
we think, shows that defendant admitted the in- 
juries were as stated by these physicians, except 
as to their permanency. The following Is what 
occurred : Plaintiff's counsel asked Dr. Tull, the 
Grst of the physicians who reached him: 'Doc- 
tor, I wish you would take Dr. Craton and show 
the Jury just where ^e wounds were and point 
them out' Defendant's counsel spoke up, say- 
ing: 'There is no controversy about that.' 
Plaintiff's counsel then asked: 'Do you admit 
they are the way they say?' (meaning these 
physicians). Defendant's counsel answered: 'We 
admit that they are the way that either of these 
gentlemen say they are.' Then, immediately, ^^^ 
plaintiff's counsel asked: 'Do you admit that ( r^/'^n\/:> 
tbey a^ permanent injuriesr Another of d«iy V3OOVLC 



B2 



187 SOUTHWBSTQSBN RBPOBTER 



(Ma 



fendasfs counsel anBwered: 'We don't make 
any admissions.' This, of conrae, referring to 
the permanency of the injuries. 

"But it was said b^ defendant's connsel at 
the argument that plaintiff's appearance at the 
trial was evidence that the obserration of him 
by the jury should be considered. It is true 
that 'sdf-perceptlon, or self-observation, au> 
toptie proference; that is, presentation of the 
object Itself for the personal observation of the 
tribunal,' is of probative force, and may be con- 
dnsive in some instances. We so decided in 
Orschdn v. <Scott, 90 Mo. App. 352, 361-<366. 
That view was discredited by a decision of the 
Supreme Oourt in Phelps v. City of Salisbury, 
161 Mo. 1 [61 S. W. SS2] • but it is asserted 
in later eases; State v. Gebhaodt, 219 Mo. 



708, 718 [119 S. W. 3501; State v. Davis, 237 
Mo. 237, 242 ri40 S. W. 902]. A remarit in 
the Oebhardt Case, that 'courts are frequently 



called upon to act upon evidence addressed to 
the senses, often called view or inspection, and 
to recognise without further proof that the per" 
son before them ia an aged person, male or fe- 
male, a child, • boy or a girl, white or black, 
a person with or without phyaical deformity of 
limbs and the like,' ia especially applicable to 
this case, in its application to plaintttTa claim 
of facial disfigurement. But in order to allow 
observation to have any weight, there must be 
a preaence or an absence of something to ob- 
serve. If, for instance, a man present at the 
trial had but one leg, it could not be said the 
jury could observe ne had two. So in this 
case it should not be said that the Jury observ- 
ed that plaintiff's nose and face were not dis- 
figured when the plaintiff himself exhibited his 
face to the jury and pointed out by name the 
scars and the at on the nose. He said to the 
jury 'you ae« a tit that hangs down,' which waa 
'where the edges didn't come quite together.' 
He said, 'There ia a triangular cut right in the 
head there, extending down to about here (in- 
dicating) ; you can see the scar right here.' 
In much the same way his face and crooked 
noae caused by breaking or mashing the septum 
were exhibited to the jury by physicians. In 
view of thia and other evidence, not questioned 
by defendant, and the statement of counsel 
above set out, there is no reasonable ground left 
for the idea that the jurjr may have observed 
that plaintiff was not injured and disfigured. 
It is jKMaible that reputable phyenciana or 
plaintiff himself would go through the farce 
(without dispute or challenge from the defend- 
ant) of exhibiting and pointing out perfect and 
natural conditions of face and head and falsely 
calling them names of disfigurement; but it 
is not believable. 

[5, 6] "But we are met with defendant's 
claim that the verdict of the jury assessing 
compensation in actions in tort for unliquidat- 
ed damages cannot be disturbed. Counsel qual- 
ified that statement by the proviso, 'if the 
amount is a substantial sum'; conceding that 
if the sum is merely nominal, the court had 
supervisory power; but claiming that $250, 
the amount of the verdict, was a substantial 
sum. In our opinion, keeping the character of 
the injuries in mind, it should not be so con- 
sidered. We think, under the evidence and in- 
structions of the court, that sum, to use the lan- 
guage of the motion for new trial, 'is grossly 
inadequate,' and must haVe been arrived at in 
disregard of the evidence. It should strike all 
reasonable minds as pal;>ably unjust and un- 
fair. In such instances it is the duty of the 
court to interfere. Fischer v. St Louis, 189 
Mo. 607, 579 [88 S. W. 82, 107 Am. St. Rep. 
380]. That case cites others from the Supreme 
Court and announces the duty of the court to 
interfere when the verdict is wholly inadequate 
as well as when it is excessively large. It is 
stated in Leavitt v. Dow, 105 Me. 50 [72 Atl. 
736, 134 Am. St. Rep. 534, 17 Ann. Cas. 1072], 
that the tule of absolute deference to the ver- 
dict of a Jury in actions ia tort, 'haa been- re- 



lazed, and it la now held both !a England and 
in the courts of the United States that no 
reason can be given for setting aside verdicts 
because of excessive damages, ' which does 
not apply to setting them aside for inadequa- 
cy of damages.' The same, in substance, is 
said in Ldght Co. v. Mason, 81 Ohio St 463 
m N. E. 292, 28 li. R. A. (N. S.) 1301, and 
in Simmons v. Fish, 210 Mass. 663 [97 X. 
B. 102, Ann. Cas. 1912D, 588], in which latter 
casCj practically like the one at bar, the issue 
of liability was the onl^ contest, there being 
no dispute as to the injury done, which was 
the loss of an eye, and the verdict was for 
$200. The court said at page 571 of the re- 
port that such a verdict the jury having agreed 
upon the defendant'a liability, 'was inooDceiv> 
able' as to the damages returned, and that 'the 
inference was irresistible that it was agreed 
upon from improper motives.' In Benton v. 
Collins, 126 N. C. 83, 93 re4 S, B. 242, 47 U 
R. A. 33], a verdict for $350 for assault and bat^ 
tery was set aside for inadequacy. In Tath- 
weU ▼. Cedar Rapids, 122 Iowa, 50 [97 N. W. 
96], a verdict for $1(X> was set aside for same 
reason. In Rossey v. Lawrence, 123 La. 1053 
[49 South. 704, 17 Ann. Cas. 484] a verdict 
for $1,000 for loss of a thumb and forefinger 
and injury to others was 'manifestly inade- 
quate.' In Morrlssey v. ESectric Ry. Co. [30 
App. Div. 424], 51 N. T. Supp. 945, a verdict 
for $500 in a personal injury case was said to 
be ridiculously small and it was <et aside. 

"From the frequency of applications by de- 
fendants to set aside verdicts for excessiveness 
and the rarity of such requests from plaintiffs 
for inadequacy, the bar has been, in a manner, 
led into the belief that the latter is not allow- 
able by law. But the cases herein cited dis- 
close that no reason exists for the former class, 
that could not, and should not, be applied to 
the latter. 

"The extreme case falling ander onr observa- 
tion is that of Phillips t. London Ry. Co. (1879) 
5 L. R. Q. B. 7& where a verdict for £7,000 
($35,000) Was held so tar inadequate as to re- 
quire a new trial, at which £16,000 ($80,000) 
was recovered ; (1879) 5 U R. C. P. 280. The 
plaintiff in that case was a physician with large 
income. We have not a case like that, but we 
are now dealing with defendant's proposition 
that we have not the legal Tight to interfere 
with a verdict where a substantial sum is re- 
turned. 

"There is a dass of actions in tort, such, for 
instance, as slander, where, in the absence of 
special or consequential damages, there is no 
tangible loss, in which it has been held that 
the small amount of the verdict is not ground 
for new trial, 'unless there has been some mis- 
take in a point of law on the part of the Judge 
who presided, or in the calculation of figures 
by the jury.'* Rendall v. Hayward, 6 . Bing; 
(N. 0.) 424; Forsdikc v. Stone, L. B. 3 G. I\ 
607. In the latter of these cases the court said 
that 'in a case of slander a jury considers not 
only what the plaintiff should receive, but 
what the defendant should pay.' On the first 
appeal of Phillips v. London Ry., supra (1879, 
4 Q. B. 406), Cockbum, C. J., at page 409, ap- 
proved of that statement, and distinguished 
between an action for slander and one for per- 
sonal injury, in these words : 'We think the 
rule contended for (in slander) has no applica- 
tion in a case of personal injury, and that it is 
perfectly competent to us if we think the dam- 
ages unreasonably small to order a new trial 
at the instance of the plaintiff. There can be 
no doubt of the power of the court to grant a 
new trial where in such an action the damages 
are excessive. There can be no reason why 
the same principle should not apply where they 
are insnfBcient to meet the justice of the case' 

[7] "While we are not called upon In this 
case to distinguish between slander and per- 
sonal injury, we do say that in the latter »<>~xr^\r> 
don, so far OS comp«n8at05)t,,?(8m|»^ ^S- QOoOy It. 



Moj 



OKATOK T. axmrzvsoTSR 



68 



eerned, one is vtitled to haT» fall oompania- 
tion, and a jotj has no right to consider what 
a Soilty defendant should pay, apart from Tvhat 
a plaintiff should receive. FuU compensation 
is a plaintiff's risht and the courts should be 
equally aa alert to see that he gets no less, as 
they are to prevent hla. getting more; making, 
of coarse, all proper allowance for the fair 
and nnbiaaed sense of justice and the reason- 
able discretion which is necessarily left to a 
jnry, when the nature of the loss is such that 
the amonnt of it cannot be precisely ascer ' 
tained. 

[8, 9] "The trial court gave as the reason for 
grantmg a new trial that it erred in two In* 
structions (12 and 16) given for defendant on the 
mbject of negligence and contributory negli- 
gence. But since the verdict was for plaintiff 
notwidistandinK those instructions, it leaves him 
without ground of complaint in that respecL 
AsBuming that the court, in only naming the 
error just mentioned, impliedly overruled all oth- 
er causes set up in the motion for new trial, 
it still leaves plaintiff with the right to ask this 
court to examine the other causes he set up, viz., 
that the verdict was 'against the evidence,' and 
that the damages awarded were 'grossly inade- 
quate, nnder the evidence and instructions.' 

"As the case is to be retried we suggest the 
amnber of the Instructions be materi&lly lessen- 
ed. We think the judgment should be affirmed. 

"Trimble, 3,, concurs. Johnson, J., dissents. 
"James Ellison, P. J." 

In Bwart ▼. Penlston, 233 Mo. loc. dt 709, 
138 S. W. 425, this court said : 

"We are of opinion that courts, npon their 
«wn motioD, may, in th« Interest of justice, and 
during the same term of the court, set aside 
their judgment and the verdict upon which it 
was entered." 

To the same eflTect Is HoUenbeck t. Ry. 
Co., 141 Mo. 97, 38 8. W. 728, 41 S. W. 887. 
Hie motloii for a new trial was filed and 
■ostalned tn this case, at the same term at 
whldi the judgment was entered. 

lit] We have likewise nnlformly held that 
tt a motion for a new trial contains several 
.groimds, and the court snstains it without 
specifying of record the ground or grounds 
on which It Is sustained, we will not reverse 
such ruling If the record contains substantial 
testimony, warranting the conclusion reach- 
ed by the trial court, on other grounds. Hew- 
itt V. Steele, 118 Mo. loc. dt 473, 24 S. W. 
440; Lead & Zinc Mining Co. y. Webster, 193 
Mo. 351, 92 S. W. 79; Johnson v. Grayson, 
230 Mo. loa dt 393, 180 S. W. 673. It is 
eqnally as well settled that If the motion 
for a new trial contains several grounds, and 
the court sustains It as to one ground, with- 
out passing npon the others, that we will not 
overturn its dedslon, even If the ground on 
which It was sustained was not well taken, 
provided the record contains substantial evi- 
dence from which this court can reach the 
conclusion that the motion for a new trial 
ought to have been sustained npon some oth- 
er ground alleged therein. The foregoing 
opinion points out clear and substantial tes- 
timony In the record, tending to show that 
Qte ends of justice would best be subserved 



by sustaining the actlcm ot the trial court in 
granting plaintiff a new trial, although up- 
on a different ground from that mentioned 
by the court, In its record sustaining same. 

In the McCarty Case, supra, 192 Mo. loc. 
dt 400, ei S. W. 133, It is said : 

"There is no brief by respondent By that 
of appellant only one insistence is made, to wit, 
that the verdict was a substantial one — a. verdict 
the jury was authorised to render and which, to 
attain or disturb, was error, nisi, because there- 
by appellant is subjected to a new inquisition of 
damages and placed in danger of being mulcted 
in $5,000." 

Judge Lamm, In considering ttiis subject 
upon pages 401, 402, of 192 Mo., npon page 
133 of 91 S. W., said: 

"Considering the case from this point of view, 
it must not be lost sight of that a jury may not 
give any verdict it pleases. Its verdict is first 
subject to the trained judicial discretion of the 
trial judge, and his judicial discretion, so exer- 
dsed upon the verdict, will not be interfered 
with on appeal except it be unmistakably un- 
wisely exercised. Bank v. Armstrong, 02 Mo. 
loc. dt 279 et seq. [4 S. W. 720]; Bank v. Wood, 
124 Mo. loc. cit 76, 77 [27 8. W. 554] : Kuenzei 
V. Stevens, 155 Mo. loc; cit 285 [56 S. W. 
1076] ; McCloekey v. PuUtzer Pub. Co., 163 Mo. 
loc. cit 33 [63 S. W. 99], and cases dted. T^ie 
wise exercise of this judicial discretion on the 
part of circuit judges has always been encourag- 
ed by this court — a discretion exemplified by Jus- 
tice Grier in his celebrated di£tum that 'it takes 
thirteen men in this couVt to steal a man's farm ; 
twelve in the box and one on the bench.' 

"The trial jndge stands peculiarly close to the 
fountainhead of legal justice. He is the high 
priest presiding at the very altar of the temple. 
To him it is given to hear the intonation of 
voice of a witness, to see his manner, his cast 
of countenance, the glance of his eye, the be- 
havior of the jury, their intelligence, their at- 
tention and the whole network of small inddents 
creating an atmosphere about a case and tending 
possibly to a perverted result or otherwise, none 
of which can be preserved In the bill of excep- 
tions and sent here, and in him, therefore, should 
exist the courage to prevent a miscarriage of 
right. His viewpoint IS entirely different &rom 
that of an appellate court" 

The above case affords a strong precedent 
for the action of the trial court in granting 
plaintiff a new trial. Plaintiff was earning 
good wages, and a Jury only allowed his wid- 
ow $600 on account of his death. The court 
below granted her a new trial because the 
damages were inadequate, and we aflBrmed 
the judgment We are satisfied .with the 
oonclusion reached in the McCarty Case, and 
see no reason for departing from same In dis- 
posing of the case before us. 

The Judgment below Is accordingly a£9rm- 
ed, and the cause remanded to the drcult 
court of Chariton county for further disposi- 
tion. 

BROWN, C, concurs, 

PER CURIAM. The foregoing opinion of 
RAILEY, C, is adopted as the opinion of 
the court AH concur; BOND, J., in resnlt 



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64 



187 SOnTB'WBSTBaN KEPOBTBR 



(Ma 



STATE «x Inf. WRIGHT, Prosecntiiig Attor- 
ney, T. MORGAN et al. (No. 18754.) 
(Supreme Oourt of Missouri, Division No. 1. 
June 2, 1916.) 

1. Appeal and Ebbob €=»502(1)— Record- 
Bill OF Exceptions — Motion fob New 
Trial. 

Appellant, in his abstract of record, where 
matters of exception are relied on, must show by 
the reoord proper that his motion for new trial 
was filed within the timf required by law, and 
must set out as part of the oii. of exceptions the 
motion for new trial, or by appropriate language 
call for it, else the court can consider only the 
record proper. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. { 2306 ; Dec. Dig. <S=»502(1).] 

2. Statutes «=>96(1) — Constittjtionalitt — 
Local and Special Law. 

Sess. Acts 1913. p. 721, providing for the 
organization of consolidated schools and rural 
high schools, and providing state aid therefor, is 
not violative of Const, art. 4, § 53, prohibiting 
local or special laws concerning schools, as being 
local and special, applying to only part of the 
state, while a general law could be made ap- 
plicable. • 

[Ed. Note.— For other cases, see Statutes, 
Cent Dig. { 107; Dec. Dig. ©=996(1).] 
R. Schools and School Districts ©=>22 — 

Statute Authorizing Formation— Oonsti- 

TDTlONALrrT. 

Sess. Acts 191S, p. 7121, providing for the or- 
ganization of consolidated schools and rural 
high schools, and providing state aid therefor, is 
not violative of Const, art. 10, i 11, prescribing 
the limits of taxation for local purposes, in that 
n school district formed under the act would be 
neitlicr a country nor a city district; Rev. St 
§ 10775, classifying school districts. 

[Ed. Note.— For other cases, see Schools and 
School Districts, C^t Dig. S 41 ; Dec Dig. «=» 
22.1 

4. CoNSTrranoNAL Law «=s226(l) — Equai. 

Protection of Laws — School Distbiot 

Statute. 
Sess. Acts 1913, p. 721, providing for the 
organization of consolidated schools and rural 
high schools, and providing state aid therefor, 
is not violative of the Fourteenth Amendment of 
Const V. S. j 1, as denying citizens of the state 
equal protection of the laws, etc. 

[Ed. Note. — For other cases, see Constitutional 
Law, C!ent Dig. S 681; Dea Dig. «=»225(1).] 

6. Statcteb «=»235— Oonstruction— Sohooi. 

Laws. 
It is the policy of the Supreme Court, in 
construing statutes relating to schools and school 
districts, to give them a liberal construction, and 
to uphold the same whenever it can be done 
without violating the plain provisions of the law. 

[Ed. Note.— For other cases, see Statutes, 
Cent Dig. § 316; Dec. Dig. «=»235.] 

Appeal from Circuit Court, Nodaway Coun- 
ty; Wui. C Ellison, Judge. 

Quo warranto, on the relation of George 
P. Wright, Prosecuting Attorney of Nodaway 
Ck>unty, against Everett L. Morgan and oth- 
ers. From a Judgment for respondents, tbe 
relator appeals. Judgment affirmed. 

On July 7, 1914, George P. Wright, prose- 
cuting attorney of Nodaway county, com- 
menced a proceeding by quo warranto. In tbe 
circuit court of said county, against tbe 
above-named defendants, charging that they 



were unlawfully and wlllfnily osurplng and 
exercising the functions and prerogatives of 
directors of school districts numbered 141, 
160, 16L 162, and 181, in said county. In 
the way and manner aforesaid, under tbe 
pretense and claim that the above-mentioned 
school districts were embraced In and con- 
stitute the alleged consolidated district No. 
162 as aforesaid; and that said respondents 
have been, and now are, unlawfully and will- 
fully acting In cMicert and together, as a 
board of school directors .In the territory 
embraced in the school districts aforesaid, 
and are causing taxes to be assessed and 
levied, teachers to be employed, schooU to be 
run, etc., and are performing all acts and 
things required and permitted to lawful 
school directors; all of which is willfully 
and unlawfully done to the injury and det- 
riment of. the state of Missouri. 

On October 12, 1914, respondents filed 
their return, setting out in detail all the 
different steps .and proceedings to establish 
consolidated school district No. 162, and 
tending to show that they were elected as 
directors in said consolidated district, as 
required by law. Tbe facts stated in the 
return, if true, show a substantial compli- 
ance with the law, in regard to the forma- 
tion of said district and tlie election of re- 
spondents as directors therein. 

Relator filed a reply, putting in Issue the 
facts pleaded by respondents in their return, 
and attacked the validity of the Acts of 1913, 
page 721 and following, upon the alleged 
grounds that said act violates section 28 of 
article 4 of our (Constitution In that it con- 
tains more than one subject, which is not 
clearly expressed in the title; and that the 
title to said act is misleading and not broad 
enough to cover the subjects attempted to 
be embraced therein. Be further charges 
that said act violates section 63 of article 
4 of our Constitution in that it is local, spe- 
cial, and applies only to a part of the state ; 
that a general law could be made ai^llcable 
to the whole state; that it is a local option 
law and exempts from its operations portions 
of the state ; that the attempted classification 
violates section, 11 of article 10 of our Con- 
stitution. He further alleges that said act 
violates the Fourteenth Amendment to tbe 
ConstituUon of tbe United States in that it 
denies to the citizens of the state the equal 
protection of the laws ; and that tbe enforce- 
ment of said act would abridge the priv- 
ileges and immunities of citizens of the Unit- 
ed States and of the state of Missouri. 

The court, on tlie 19th of December, 1914, 
after hearing the evidence and argument of 
the counsel, found the issues in behalf of 
respondents and entered Judgment in ac- 
cordance therewith. The cause was duly ap- 
pealed by relator to this court 

We have simply set out heretofore tbe 
substance of the petition, answer, reply, 
and Judgment, as constituting the record 



4s»For other eww ipa same topic and KBT-NUIIBBR In all Key-Numbered Digeats and Indexes 



bgle 



Ua) 



STATE v.MORa AN 



65 



proper; and have not sfet out any of the 
erldence and matters of exception, because 
tlie alleged bill of exceptions mentioned In the 
abstract of record does not contain a mo- 
tion for a new trial, nor Is there any call 
tberelQ for same. This matter will be con- 
sidered more fully in the opinion to follow. 

Wm. G. Sawyers, Pros. Atty., of Mary- 
TUle (George P. Wright and A. F. Harvey, 
both of MaryvlUe, of counsel), for appellant. 
Cook, Cmnmlna & Dawson, of MaryvlUe, for 

respondents. 

BAILEY, C. (after stating the facts as 
above). Appellant has set out, as a part of 
the record proper his motion for a new trial, 
the ruling of the court thereon, and alleged 
that an exception was taken to the action of 
the coiut In overruling same. Turning, how- 
ever, to the abstract of record, and Inspect- 
ing the contents of the alleged bill of ex- 
ceptions, we find no motion for a new trial 
set oat, nor is there any call made there for 
said motion. 

[1] Appellant, in his abstract of record, 
nrhere matters of exception are relied on, 
must show by the record proper that bis mo- 
tion for a new trial was filed within the 
time required by law. He complied with 
this requirement, as shown by the record. 
He Is likewise required, in his abstract of 
record, to set out, as a part of the bill of 
eiceptions, the motion for a new trial, or 
by appropriate language call for some there- 
in. In the case at bar, the alleged bill of 
eiceptions does not contain any motion for 
a new trial, nor is there any call therein 
for said motion. Hence, under the repeated 
ratings of this court, we can only consider 
the record proper. Haggerty v. Ruth, 259 
Ifo. loc. clt. 222, 223, 168 S. W. 587; City 
of St. Louis V. Young, 248 Mo. loc. clt 34T, 
MS, 154 S. W. 87; Bealty Co. v. Brewing 
Co., 247 Mo. loc. clt 31, 32, 152 S. W. 31; 
Blanchard v. Dorman, 236 Mo. loc. clt. 438, 
439, 139 S. W. 395; City of St Louis v. 
Hennlng, 235 Mo. loc. clt. 51, 138 S. W. 6; 
Betzler et al. v. James, 227 Mo. loc. dt 
1S7, 126 S. W.1007; Hays v. Foos, 223 Mo. 
loc. clt 423, 424, 122 S. W. 1038; State ex 
rel. V. Adkins, 221 Mo. loc. clt. 120, 119 S. 
W. 1091 ; Groves v. Terry, 219 Mo. loc. clt. 
597, 598, 117 S. W. 1167; Gilchrist v. Bry- 
int, 213 Mo. loc. clt 443, 111 S. W. 1128; 
Reed v. Colp, 213 Mo. 577, 112 S. W. 255; 
Stark V. Zehnder, 204 Mo. 442, 102 S. W. 
•92; Harding v. BedoU, 202 Mo. 625, 100 
5. W. 638; State v. Ruck, 194 Mo. 416, 
12 S. W. 706, 8 Ann. Cas. 976; State v. 
tevely. 145 Mo. 660, 47 S. W. 787; State v. 
landley, 144 Mo. 118, 45 S. W. 1088; State 
. Wray, 124 Mo. 542, 27 S. W. 1100; State 
. GrUBn, 98 Mo. loc. dt 674, 12 S. W. 358, 
iid cases cited. There are numerous other 
aaes decided by this court, as well as the 
arlons courts of appeals, announcing the 
aae rule of law. This court has endeavor- 
d to impresa upon counsel throughout the 



state the necessity of observing this plain 
requirement. If members of the bar are 
heedless in falling to observe the law, in re- 
spect to these matters, with so many de- 
cisions requiring It, they should not expect 
the court to overlook such errors, when they 
are patent upon the face of the record. 

II. /Record Proper. The petition states a 
good cause of action, and the answer, as 
heretofore stated, sets out in detail all of 
the proceedings tending to show that con- 
solidated school district No. 102 was legally 
establliihed, as required by the Acts of 1913, 
page 721 and following, and that respondents 
were legally elected to fill the positions, 
from which they are now sought to be ousted 
by relator. The reply puts in Issue the al- 
legations of the answer, and attacked the 
validity of above act uiion the grounds here- 
tofore set out In the statement. 

On the record thus presented, the trial 
court, after hearing the evidence and argu- 
ment of counsel, found the Issues In favor of 
respondents and entered Judgment in accord- 
ance therewith. As the trial court, on the 
facts, has found In favor of respondents, and 
as we are precluded from reviewing same, 
because no motion for a new trial api)ears In 
the bill of exceptions or is called for therein, 
the judgment below must stand affirmed, un- 
less the Acts of 1913, at page 721 and fol- 
lowing, be held as unconstitutional upon one 
or more of the grounds set out In the reply. 

III. The reply challenges the constitution- 
ality of the Act of the General Assembly of 
Missouri, approved March 14, 1913, and re- 
ported In the Session Acts of 1913, at page 
721 and following, on the ground that It Is 
violative of section 28 of article 4 of the Con- 
stitution of Itlissourl in that It contains more 
than one subject which is not clearly ex- 
pressed In the title, and because the title to 
said act is misleading and not broad enough 
to cover the subject attempted to be em- 
braced therein. 

We are relieved of the necessity of consid- 
ering this question, on account of the recent 
ruling of the court in banc in the case of 
State ex rel. Clark et al. v. John P. Gordon, 
281 Mo. 681, 170 S. W. 892. Judge Woodson, 
in speaking for the above court, in his opin- 
ion set out various sections of the act com- 
plained of, and in direct terms held that said 
act did not violate the provisions of section 
28 of article 4 of the Constitution aforesaid. 
He cites in his opinion a large number of au- 
thorities sustaining the conclusion reached 
by him in that respect In discussing other 
constitutional questions raised, in respect to 
said act, Judge Woodson, on page 649 of 261 
Mo., page 897 of 170 S. W., said: 

"This act is progressive and in keeping with 
the forward movement of the state and country 
at large— bringing borne better schools and high- 
er grades of instruction, which the ordinary pub- 
lic schools do not tench, and are incapable of 
teaching on account of the lack of means to con- 
struct appropriate buildings and to employ com' 
peteot teachers. By this scheme of the Legisla- 
ture, thousands of our children can and will be 



gitized by 



Google 



66 



187 S0UTHWK6TBBN EEPORTEB 



(Ua 



instructed in th« faitrher branebe« of «dueation 
not tausbt in ttie ordinary scliool, who are un- 
able to go to dtr biKh schools, colleses, and 
universities away from home. 

"The desifcn of the Leicislature is Kood and 
wise, and before the act conferring this benefi- 
cence upon tbe youth of tb« country should be 
declared invalid the reasons therefor should b« 
so clear and unanswerable that no rcasonnble 
doubt should exist as to its nnconAtitutionality; 
and. after a careful rending of the briefs <tf tbe 
respective parties and having investigated tbe 
authorities cited, we are of the opinion that no 
such reason has been pointed out." 

The language above quoted fully disposes 
of the foregoing question, and Is alike appli- 
cable to the other constitutional questions 
hereafter discussed. 

[2] IV. It Is charged In the reply that said 
act is unconstitutional because It Is violative 
of section 53 of article 4 of the Constitution 
of Missouri in that It is local and special, 
and applies to only a part of the state ; that 
a general law can be made applicable to tbe 
whole state, etc. We are of the opinion that 
there is no merit In this contention. The 
above act is not confined to any county or 
township In the state. A consolidated school 
district may be formed anywhere In the state. 
If the terms and conditions prescribed by the 
statute are followed. 

This same class of questions has been often 
brought before our courts In different forms. 
At an early day, the Legislature passed what 
was generally known as a local option law, 
in respect to the sale of intoxicating liquors 
(Acts 18S7, p. 177). It was vigorously as- 
saulted for many years in the courts of the 
state, and, among other things, the charge 
was made that it was unconstitutional. In 
the case of State ex rel. Maggard v. Pond, 93 
Mo. loc. cit. 621, 68 S. W. 472, Judge Norton, 
speaking for this court, said: 

"Under the rule thus laid down, the conten- 
tion of the relator that the act in question is a 
local or special, and not a funeral, law is with- 
out foundation. The act in question applies to 
all the counties in the state as a class, and to all 
incorporated cities or towns as a class bavinK a 
population of 2,500 or more inhabitants. All the 
counties in tbe state, and all cities and towns 
with tbe requisite population, may, by oomplring 
with its terms, come under its provisions. ' 

After an elaborate review of the above law. 
It was sustained by the court. 

The construction of above law afterwards 
came before this court In Ex parte Handler, 
176 Mo. loc. clt 388, 389, 75 S. W. 920, 922. 
Judge Uantt, In behalf of Division No. 2, said: 

"The very words 'local option' imply tbe grant 
of the right to one locality to adopt and an- 
other to decline to avail itself of the law. More- 
over, it is no objection to a law that it does 
not operate upon every citizen alike; it is su£S- 
cient if it operates equally upon all who in all 
parts of the state come under the same circum- 
stances and conditions. Gordon v. State, 40 
Ohio St. 607 (23 N. E. 63, 6 L. R. A. 749]; 
Santoro v. State, 46 Ohio St. 607 [23 N. E. 63, 
6 L. R. A. 749]." 

Judge Gantt, in presenting the Issue In- 
volved, on page 388 of 176 Mo., page 922 of 
75 S. W., said: 

"Addressing ourselves now to the two proposi- 
tions which counsel now urge in addition' to' 



those decided in the Maggard-Pond Case, th« 
first is that it violates the constitutional pro- 
vision that all laws of a general nature shall 
have uniform operation throughout the state, 
and, inasmuch as a different penalty is imposied 
by the local option law for selling and ^vini; 
away intoxicating liquors from tliat inflicted ins 
the sale or giving away of such liquors in other 
portions of tbe state, it necessarily offends the 
prindpls of uniformity." 

All of the objections urged against tbe 
oonstitutionallty of said act were again over- 
ruled to the Handler Case. 

In State ex rel. Dome et ah- ▼. Wilcox, 45 
Mo. 458, the relator instituted proceed! ns!< in 
the nature of a quo warranto in the Living- 
ston circuit court, to determine the ri;{tat of 
respondent to the office of school director in 
the town of Utica ; it being a school corpora- 
tion, organized under chapter 47 of tbe Gen- 
eral Statutes of 18U5. Relator sought to ou^t 
respondent from olflce on tbe ground that 
said chapter of the above law of imio was 
uuconstitutlonaL Judge Wagner, on page 461 
of 45 Mo., said: 

"A question of more grave and paramount im- 
portance to the people of this state could hardlr 
be brouRht in this court. Nearly every town and 
village has organized under the law referred to. 
Acting in accordance with its authority. tb>T 
have built schoolhouses, employed teachers, in- 
curred debts, and systematized nnd put in <'piT»- 
tion rules and regvilations which have greatly re- 
dounded to our educational interests. liefore a 
court would be justified in pronouncing against 
this system, and producing the ine.vtricable cvd- 
fusion which must npcessBrily follow, it should 
furnish reasons for its decision, at once clear, 
cogent, and convincing." 

The same learned Judge, on page 465 of 
45 Mo., said: 

"Special statutes relate to certain indiridnal 
classes or particular localities. Had the act ci>- 
plied to a certain specified town or a single O'C^ 
poration, it would have been special; hut sii<h 
is not the case. It is coritensive with the state, 
and its influence is felt in every county and al- 
most every township. It is conceded that it di^-j 
not include in its operation every individual ccr 
extend to all the territory, but that is n<it re- 
quired. It is as general as is consistent with ita 
scope and design, and no law more general in 
its nature could be framed to effectuate and car- 
ry out the object in view. This is also a sufi- 
cient answer to tbe point raised, that the act :: 
in opposition to the fourth section of the eistt:i 
article of the Constitution," 

The above observations of Judge Wagn«-i 
apply with equal force to the law under ci.>a- 
slderatlon here. Similar laws have bee: 
passed In this state, relating to other sub 
Jects which have llke'wlse been sustained. 

In 1873, this court was called upon by thi 
General Assembly to express its opinion a; 
to whether or not a township organizatic-: 
law could be legally passed under the Con 
stltutlon of 1SC6. Said opinion, in Opinion. V' 
Justices, 55 Mo. on page 297, reads a.s fol 
lows: 

"It is a general law made for the whole sti-ti 
and by the terms of the act itself took eiTec 
from and after its passage. Every county in tb 
state may avail itself of the privileges oSer> 
by this law by a majority vote of its peoole. ] 
is left to the option of the counties whether tbr 
will organize under the law or not. If a inji>,-< 
ity vote for it, such vote does not create tlae ikn 



Uoi) 



H0I7SE ▼. CHiAKKB 



57 



bit pUca the eoontr lo votliic witbiii its provl- 
tioDs; and the orgaDization then takes effect, 
Sid also the law, as it existed before the vote 
wu taten. The law does not delegate, nor was 
it the intCDtion of the lawmakers to delegatei 
le{islatire authority to the counties. Unless 
the counties avail themselves of the right to or- 
ganiie they will remain as they were, unaffected 
b; aD7 of the provisions of this statute. It Is 
DjiDecenary to elaborate this point or to write 
a lengtb.7 political essay oa a subject, which, 
it seems to us, needs no illustration. It is sufB- 
dect to say that we are satisfied that no provi- 
s'on of the Constitution has been violated in 
the passage of this law." 

This opinion was signed by Judges Adams, 
Wagner, Sherwood, and Ewlng. 

We likewise liave In tbis state, and bave 
hii tor many years, a statute authorizing 
any county or township, under the drcum- 
ttances named therein, to ad(4)t a stock law. 
The same objections were urged to this class 
of legislation as are urged in the present 
ca^; but this court uniformly held that the 
different classes of laws, heretofore dls- 
cassed, are neither special, nor do they vio- 
late any provision of the Constitution. 

We are of the opinion that the above con- 
tention of relator ia without merit, and is 
)Terruled. 

[3] V. It is next insisted that the above 
ict Is ia violation of the provisions of sec- 
Ion 11 of article 10 of the Constitution of 
Missouri in that such a district would be nei- 
her country nor dty district. We are of the 
pinion that there Is no merit in this con- 
eotion. Section 10776 of R. S. 1909 classifies 
he different school districts of the state, and 
here is nothing In the above act of 1913 
'hlcb, in any manner, conflicts with the see- 
on of the Constitution above referred to. 
"bin contention of relator is likewise over- 
iled. 

[4] VI. It Is contended by appellant that 
le above act violates section 1 of the Four- 
eotb Amendment of the Constitution of the 
Dited States in that it denies to citizens of 
e state equal protection of the laws, etc. 
lis same constitutional question was put 
rward in the attack made on the local op- 
m law of this state, as will be seen by ref- 
mce to the opinion of Judge Black In Ex 
rte Swann, 96 Mo. loc. dt 51, 62, 9 
W. 10, 11, In which he says: 
'A further objection to the statute is that it 
itrnvenes section 1 of article 14 of the Con- 
tution of the United States, which declares 
t no state shall 'deny to any person within 
jurisdiction the equal protectiou of the law.' 
r statute, which allows the state 16 peremp- 
T ctialleneea in capital cases io cities having 
r 100,000 inhabitants, whilst elsewhere the 
te is nllowed only 8 peremptory challenges, 
I nsfiailed in Hayes v. Missouri, 120 U. S. 
f7 Sup. Ct. 350, 30 L. Ed. 578] as being in 
fiict with the above prohibitions upon state 
slation. The Supreme Court of the United 
tes then said : 'This amendment does not pro- 
it legislation ^vhich is limited either in the ob- 
s to which It is directed or by the territory 
Un which it is to operate. It merely requires 
t all persons sub]ectpd to such legislation 
U be treated ahke, under like circumstances 
conditions, both in the privileges conferred 



and in the liabilities imposed.' And again it 
was said in Missouri v. Lewis, 101 U. S. 30 [25 
L. Ed. 989], speaking of the same constitutional 
provision: 'It contemplates persons and classes' 
of persons. It has no respect to local and mu- 
nicipal regulations that do not injuriously affect 
or discriminate between persons or clnsses of 
persons within the place or municipalities for 
which such regulations are made.' 

"The law in question applies alike to all per- 
sons within the territory or locality where it is 
adopted. There is no discrimination whatever 
in favor of or against' persons or classes of per- 
sons within such territory. They are nU treated 
alike. It is true the penalties for violating this 
law are not the same as those for violating the 
dramshop law. They are, indeed, not the same 
offenses. In the one case the offense is the viola- 
tion of a law which allows and regulates traffic 
in intoxicating liquors as a beverage, and in the 
other case the offense is for selling such liquors 
where the sale of it ia prohibited by law. But 
aside from this the law makes no discrimination 
as to persons in the territory where it takes 
effect, and that is enough to show that it in 
no way contravenes the section of the Consti- 
tution of the United States before quoted." 

We do not deem it necessary to consider 
the constitutionality of the above act further. 
In no uncertain language, the following re- 
cent cases have upheld the validity of the 
proceeding thereunder, to wit: State of Mis- 
souri ex inf. James S. Slmrall ex rel. Benja- 
min M. Clements et al. v. George Clardy, et 
al., decided March 30, 1916, 185 S. W. 184 ; 
State of Missouri ex rel. Emert C. Ullbert 
V. E. C. Glaves et aL, decided May 15, 1916, 
186 8. W. 685; State ex reL v. Gordon, 261 
Mo. 631, 170 S. W. 892. 

[(] It lias been the policy of this court, in 
construing the statutes relating to schools 
and school districts, to give them a liberal 
construction, and to uphold the same when- 
ever it can be done without violating the 
plain provisions of the law. 

Having decided the constitutional questions 
adversely to relator, and no error having 
been found In the record proper, the Judgment 
of the trial court is afhrmed. 

BROWN, C, concurs. 

PER CURIAM. The foregoing opinion of 
RAILEY, C, is adopted as the opinion of 
the court. All concur; BOND, J., in result. 



HOUSE et al. v. CLARKE et al. (No. 17052.) 

(Supreme Court of Missouri, Division No. 1. 

June 2, 1016.) 

1. MoBTGAOES €=>24— Offices of Mobtoaobb 
AS Trustee— Fbaud. 
Where the owner of land borrowed from a 
bank and executed his note, secured by deed of 
trust to the president of the bank, with knowl- 
edge of the Intter's oQicial position, thus con- 
senting that the president should act as trustee, 
and the latter, upon the note's becoming due, 
advertised and sold the land in controversy un- 
der the deed of trust, a note for $2,050, execut- 
ed to the owner of the laud by the buyer thereof 
and left with the bank for collection not having 
been paid, the heirs of the owtier after his 
(leatli could not recover the land from the trus- 
tee's grantee on foreclosure on the ground that 



^ — .Fnr otl>«r CBM* See lama topic and KEY-NUUBER in all Key-Numt)er«d Dl«e(U and Indexes 



_ ^ L igitized by VjOOQ i^ 



58 



187 SOUTHWBBTEBN BBPORTKR 



Of*, 



the sale made by the bank president as trustee 
was voidable. 

[Ed. Note. — For other cases, see Mortgages, 
Cent Dig. i 28% ; Dec. Dig. «9=24.] 

2. MoRTOAOES ®=>516— Sale on Fobeclosubx 
—Right to Purchase. 

The cashier of a bank, which loaned a land- 
owner money, the latter giving his deed of trust, 
naming the bank president as trustee, as secu- 
rity, had the right as an individual on foreclo- 
sure to bid on the property at the trustee's sale 
and to buy it in if be were the highest and best 
bidder. 

[Ed. Note. — For other cases, see Mortgages, 
Cent. Dig. f 1518; Dec. Dig. <e=>516.] 

3. MoBTOAQBS *=9529(8)— Redemption— S5TAT- 

UTE. 

Under Rev. St. 1909, fj 2829, 2830, provid- 
ing that all realty, if bonght in by the benefici- 
ary in a deed of trust under a foreclosare sale, 
shall be subject to redemption by the grantor 
in the deed or his successors within a year from 
the date of sale, upon giving security, etc., where 
neither the grantor in a deed of trust nor his 
heirs gave notice or security, and failed to tender 
into court the debt, interest, etc., to the mort- 
gagee bank, the cashier of which purchased on 
foreclosure for the bank, they were not entitled 
to recover the land from the cashier. 

[Ed. Note.— For other cases, see Mortgages, 
Cent. Dig. { 1641 ; Dec. Dig. «S=>529(8).] 

4. Mobtoaoeb iS=»529(6)— Sale on Foreoia- 

sure— iNAOEQrACT OF CONSIDERATION. 

Mere inadequacy of consideration, unless the 
consideration is so insignl&cant as to shock the 
moral sense, is not sufficient to warrant setting 
aside a foreclosure sale, otherwise regular and 
seemingly without fraud, so that a sale on fore- 
closure of a deed of trust of land worth $5,000 
for $1,800 will not on that account alone be set 
aside. 

[Ed. Note. — For other cases, see Mortgagee, 
Cent. Dig. { 1540; Dec Dig. ®=>529(6).] 

6. MOBTOAOES €=»415(1) — FOBECLOSUHB — 

Dtmr TO Extend Tiuk. 
The fact that the grantor, in a deed of tmst 
given to secure bis note to a bank, was in poor 
health, left the state soon after the execution of 
the deed, and died in California thereafter, im- 
posed no duty on the bank or its officers to ex- 
tend the time or wait longer to foreclose. 

[Ed. Note. — For other cases, see Mortgages, 
Cent Dig. {§ 1210-1218; Dec. Dig. <8=»415(1).] 

Appeal from Circuit Court, Howell Coun- 
ty; W. N. Evans, Judge. 

Action by W. R. House and otliers against 
M. B. Clarke and others. From a Judgment 
for defendants on dismissal of the bill, plain- 
tiffs appeal. Judgment affirmed. 

On January 29, 1912, plaintiffs, W. R. 
House, Horace House, Nellie Montelius, and 
Cora Sweedblom, commenced an action 
against defendants, M. B. Clarke, R. S. Ho- 
gan, and the West Plains Bank, In the cir- 
cuit court of Howell county. Mo. ; and there- 
after, on June 1, 1912, filed In said cause an 
amended petition which contains the follow- 
ing averments: 

That plaintiffs are the only children and 
heirs at law of John S. House, deceased. 

That said deceased died on the day 

of June, 1911, single and Intestate. That 
on January 8, 1910, he was the owner of 220 
acres of land located In sections 28, 29, and 
33, of township 23, range 8 west. In Howell 



county aforesaid. That on said Janoary 8, 
1910, said John S. House executed to B. S. 
Hogan, as trustee, a deed of trust on the 
land aforesaid, to secure the payment of a 
certain promissory note of that date In the 
sum of $1,000, payable to the defendant 
bank, which said deed of trust Is recorded 
In book 111, at page 596, of the deed records 
of said county. That on said date and at 
all the times mentioned herein said R. S. 
Hogan was president, and said M. B. Clarke 
was cashier of said defendant bank. That 
said loan secured by the deed of trust afore- 
said was the loan of the West Plains Bank,, 
and It was the owner of said note. That on 
said January 8, 1910, said John 8. House 
sold his equity of redemption in said land to 
William H. Hooker and Herman Schmacbten- 
berger, and executed to said purchasers a 
deed conveying his equity in said land. 
That, on the same date, said Hocriier and 
Schmachtenberger executed to said John S. 
House their promissory note In the sum of 
$2,650 to cover the purchase price for the 
equity of said House in said land. That 
said purchasers executed a deed of trust on 
said land to secure said note, subject to the 
deed of trust to the West Plains Bank, above 
mentioned. That said R. S. Hogan was nam- 
ed as trustee In the second deed of tmst also. 
In which said John S. House was named as 
beneficiary, which said second deed of trust 
Is recorded in book 111, p. 628, of the deed 
records of Howell county. That, immediate- 
ly after the execution of said deeds of trust, 
said John S. House left said county, with- 
out ever returning thereto, and died in the 
state of California, about June, 1911. That 
he left with the defendants his note of $2,- 
650 aforesaid, for collection, and they have 
ever since held and retained possession of 
said note. That said John B. House was 
in bad health from the time of the execution 
of said deeds of trust to the date of his 
death. That during all that time said House 
was Incapable of looking after his business 
affairs and was In a very feeble and dement- 
ed condition. That while he was In Oregon 
or California, and In the condition aforesaid, 
the said R. S. Hogan, though president of 
the West Plains Bank, assumed to act as 
trustee, under the first deed of trust, given to 
secure said $1,000 note belonging to said 
bank, and, as sudi trustee, immediately up- 
on said debt falling due, advertised and sold 
the lands aforesaid, to satisfy said note. 
That defendant Clarke became the purchaser 
at said sale, and the said Hogan executed to 
him a trustee's deed, to the land aforesaid, 
which is recorded in book 107, at page 77, 
of the deed records of Howell county. That 
said $2,650 note remains wholly unpaid, and 
the security of . plaintiffs, as the heirs of 
House aforesaid, has heen fully lost and 
destroyed If said foreclosure sale Is permit- 
ted to stand. Thut said Hooker and 
Schmachtenbei'ger are both insolvent, and 



^=»For other cams see same topic and KST-NUMBBR la aU Key-Mumbercd DlgMU aad Indexes 



fogle 



Ho) 



HOUSB V. CLAKKB 



their present abode Is uoknown to {tlalntiffB. 
Hat said foreclosure proceedings are vold- 
tble onder the law, for the reason that the 
officers oif the defendant bank cannot aet In 
the dual capacity of representing both the 
bank and its debtor. That said bank could 
oot, throagh Its officers and agents, act as 
trastee in a sale of the land and become 
parchaaers at such sale. Ibat it would be 
Inequitable and unjnst for said sale to stand 
for the further reason that said defendants 
were the trusted agents of said House to 
look after his securities and coUect bis debts, 
secured by said second deed of trust, whldi 
has been slaughtered and sacrificed by them 
aa aforesaid. That said sale should be set 
aside and for naught held for the further 
reason that said land only brought one-third, 
of Its value at said sale. That said land Is 
worth f5,000, but only sold for $1,800 at said 
sale, leaving a small sum, after satisfying 
the debt. Interest, and costs ot sale under th^; 
flrst deed of trust. That plaintiffs should 
be permitted to redeem said land ux>on pay- 
ment of the debt, interest, and costs of sale 
nnder -the flrst deed of trust. That they 
shoDld hare an accounting of the rents and 
proSts accruing to defendants since they 
have been In possession of said lands. 

"Wherefore plaintiffs pray for an accoanting 
of the matters and thinn aforesaid ; that the 
debt, interest, and- cost of sale may be judicially 
ascertained ; that defendants be required to ac- 
coont for the rents and profits of said land 
since Uiey have come into possession of the 
nme, and, in case they have sold or disposed 
of any part of said land, that they may be re- 
qoired to account for the proceeds thereof ; that 
upon payment of any balance that ma; be found 
dae from plaintiffs they may have the rigbt to 
redeem; tnat said foreclosure sale and the said 
deed to defendant Clarke may be declared null 
and Toid and for naugbt held ; that the said first 
deed of trust to the defendant bank may be ad- 
judged to have been paid and satisfied, and may 
be canceled and for naught held and esteemed, 
and for such other orders and judgments as to 
the court may appear meet and proper." 

On Jnly 22, 1912, said defendants filed a 
demnrrer to said amended petition, which, 
without caption, reads as follows : 

"Come now the defendants and demur to the 
amended petition of plaintiffs, and for grounds 
therefor say that the amended petition does not 
state a cause of action." 

On August 17, 1912, the court sustained 
said demurrer. Plaintiffs stood on their pe- 
tition and refused to plead further. The 
court, on said August IT, 1912, dismissed 
plalntlfTs bill and in due form entered Judg- 
ment In faror of defendants. Thereupon 
plaintiffs duly appealed the cause to this 
court 

J. N. Burroughs, of West Plains, for ap- 
pellants. Green, Wayland & Green, of West 
Plains, for respondents. 

RAILET, C. (after stating the facts as 
above). This case is before us, upon the ap- 
{•eal of plaintiffs, as the heirs at law of John 
8. House, deceased, from the final judgment 
of the trial oonrt sustaining a demurrer to 



tbelr amended iKtltlon, nl>on the ground that 
It failed to state a cause of action. The pe- 
tition charges that said John S. House, on 
Jamuu7 fi, 1910, borrowed from the West 
Plains Bank |1,000, and executed bis note 
therefor, secured by a deed of trust on the 
land described in petitioA ; tbat R. S. Hogan 
was president and M. B. Clarke cashier of 
said bank ; tbat said Hogan was named as 
trustee in said deed of trust; that on said 
8th day of January, 1910, said John S. House 
sold his equity of redemption in said land to 
William H. Hooker and Herman Schmachten- 
berger, and on the same day executed to them 
a deed for above land; that, on the same 
date, the purchasers of said equity executed 
and delivered to said House their promissory 
note for $2,()50, to cover the purchase price 
of same, and secured the last-named note by 
a deed of trust on the land aforesaid, sub- 
ject to the one executed In behalf of said 
bank. "Defendant Hogan was Ukewise named 
as trustee in said second deed of trust. It Is 
averred in petition that the second note giv- 
en by the purchasers of said equity to said 
House was by the latter left with the bank 
aforesaid for collection; that said Hogan, 
immediately upon the note in said first deed 
of trust becoming due, advertised and sold 
the land in controversy, under the flrst deed 
of trust, to defendant Clarke for $1,800, al- 
though it was worth $5,000, and made said 
Clarke a trustee's deed to said land. 

[1] I. It is contended by appellants that 
the sale made by Hogan as trustee Is voida- 
ble, without any reference to sections 2829 
and 2830, R. S. 1909, for the reason tbat he 
was president of said bank when the loan 
was made by It, and the flrst deed of trust 
was taken with Hogan as the trustee there- 
in. It Is not averred that either defendant 
was guilty of actual or constructive fraud. 
It is not charged that Hogan, in foreclosing 
the flrst deed of trust, proceeded in any other 
manner than that provided for in said in- 
strument It is not alleged that defendant 
Clarke bought the land at the sale for the 
bank, nor tbat he failed to pay out of his 
own funds the $1,800 bid by him for said 
land. It is alleged in complaint that John 
S. House, immediately after the execution of 
the deeds of trust aforesaid, left Howell 
county. Mo., for the state of California, and 
died in the latter state, in June, 1911. It is 
not averred that House was ignorant of the 
fact that Hogan was president of the bank 
when the first deed of trust was taken, nor 
when the second deed of trust was executed, 
as Hogan was named as trustee In it also. 

We are fully justlQed, on the record be- 
fore us. In holding that House knew Uogan 
was president of the West Plains Bank when 
the flrst deed of trust was executed, and 
hence consented that he should act as trus- 
tee, regardless of his position as president of 
said institution. The petition does not aver 
tbat any arrangements were made by Houae^ 



joogle 



60 



187 SOUTHWBSTBEN RBPORT^tt 



(Mo. 



or any one in bis behaU, to pay tiie $1,000 
note at Its maturity. Although the f>2,660 
note, mentioned In the second deed of trust, 
was left with the bank for collection, yet 
nothing was erer paid thereon. The petition 
alleges that both Hooker and Schmachten- 
berger are Insolvent and their presence un- 
known to idalntlffs. Presumably, the land 
was left in the possession of the purchasers 
of the equity of redemption when they bought 
it Here, then, was the situation: House 
bad consented to Hogan acting as trustee in 
the first deed of trust. He left the country 
without paying the bank's note or making 
any. provision for its payment. No part of 
the $2,650 note was paid to the Iwnk, and the 
makers thereof were insolvent Hogan, as 
trustee, proceeded in the ordin»ry and usual 
course of business, in good faith, so far as 
the record discloses, and foreclosed the first 
deed of trust when the note described there- 
in became due, and sold the land for the best 
price obtainable. These plaintifTs occupy no 
better position than would House, if he were 
alive and prosecuting this action. On the 
facts disclosed by the record. House, if alive, 
would be estopped from claiming. In a court 
of conscience, that a sale, regular in form 
and without fraud, should be set aside, be- 
cause the trustee, agreed upon by him, was 
president of the bank which made the loan, 
and known by him to occupy such position 
when the loan was made. 

The amended petition therefore fails to 
state a cause of action based upon the charge 
that Hogan was president of the bank when 
the loan was made, and foreclosed the first 
deed of trust as such trustee. The case of 
Alfred V, Pleasant, 175 S. W. 891, where ac- 
tual fraud was charged, has no application 
to foregoing facts. 

[2] II. The petition charges that the land 
was bought in by defendant Clarke, who was 
cashier of said bank at the time; and that 
a deed was made by the trustee to Clarke 
conveying to him the land in controversy. It 
is not averred that Clarke bought the land 
for the bank, nor that he failed to pay the 
$1,800 bid by him, to the trustee, when the 
latter made him a deed for the land. Hav- 
ing heretofore reached the conclusion that 
Hogan was acting as trustee, with the full 
knowledge and consent of House, when fore- 
closing the first deed of trust, and that the 
sale could not be set aside on that account. 
It necessarily follows that Clarke, as an in- 
dividual, bad the legal right to bid on the 
property at the trustee's sale, and to buy in 
the same, if he were the highest and best 
bidder. In other words, as Clarke had noth- 
ing to do with the sale, except to bid as any 
other person, his purchase would furnish no 
grounds for setting aside the sale under such 
circumstances. Briant v. Jackson, 89 Mo. 
685, 13 S. W. 91. 

[3] III. But even If it should be contend- 
ed that the petition intended to charge that 
as Clarke was casliier when the loan was 



madSs and the foredosure sale took place, be 
bought the property for tbe bank, we would 
still be confronted with the proposition that 
no effort to redeem was ever made as re- 
quired by the provisions of sections 2829 and 
2830, B. S. 1909. Where real estate is bought 
in by tbe beneficiary In a deed of trust un- 
der a foreclosure sale. It "sliall be subject to 
redemption by the grantor in said deed or his 
executors, administrators or assigns, at any 
time within one year from the date of said 
sale," etc. Section 2829, R. S. 1909. 

"No part7 shall have the benefits of the pre- 
ceding section until he shall have given security 
to the satisfaction of the circuit court for ttie 
payment of tbe interest to accrue after the sale, 
and for all damages and waste that may be oc- 
casioned or permitted by the party whose prop- 
erty is sold. In case the circuit court is not ia 
session, such security may be taken by the deck 
of said court" Section 2880, R. %_1900. 

It is not claimed that plaintiffs or tbeir 
ancestor have complied wltb tbe provlsioiis 
of either of above sections. Having givea 
neither notice nor security, and having fail- 
ed to tender into conrt the debt interest otc, 
due said bank, as required by above sections, 
no case is stated in the petition in respect to 
this matter. Moss v. King, 212 Mo. 578, ill 
S. W. 689 ; iKmg ▼. Vending Machine Co., 168 
Mo. App. loa cit 066, 606, 189 S. W. 819. 

[4] IV. In view of the fticts disclosed by 
tbe amended petition, we Would not feel Jus- 
tified In reversing the case on tbe ground 
that the petition states tlie land only brought 
$1,800 at the sale, when It was alleged to be 
worth $5,000. Mere Inadequacy of considera- 
tion, in a case of this character, unless it is 
so insignificant as to shock the moral sense, 
is not sufficient to warrant us in setting aside 
a foreclosure sale, otherwise regular, and 
without the semblance of fraud. Guinan v. 
Donnell, 201 Mo. 173, 98 8. W. 478; Mangold 
V. Bacon, 237 Mo. loc. cit 522, 141 S. W. 650; 
and cases cited; Shoe Company r. Wyble, 
261 Mo. lot cit 691, 170 S. W. 112a 

[S] V. The fact that John S. House was In 
poor health, left this state soon after the ex- 
ecution of said deeds of trust, and died in 
California in Jtme, 1911, imposed no duty 
upon the bank or its officers to extend tbe 
time or wait longer to foreclose said deed of 
trust No provision was ever made to meet 
tbe indebtedness, nor was any extension of 
time ever requested. Vanmeter v. Darrah, 
115 Mo. loc. cit 157, 22 S. W. 30; Lipscomb 
V. Ins. Co., 138 Mo. 17, 39 S. W. 465. 

VI. We have carefully considered this case 
in all its bearings. The conclusion reached 
by the trial court in sustaining the demurrer 
to the amended petition is fully Justified by 
the record before us, and its Judgment is, ac- 
cordingly, affirmed. 

BEOWN, C, concurs. 

PER CURIAM. The foregoing opinion of T 

RAILEY, C, is adopted ^.tlL^ opinion OfO QIC 
the court All concur. O 



Uo.) 



SCHOFIEU) y. HARBISOK X.AKD & MIITINO OO. 



61 



SCBOFIEIJ> et al. t. BABRISON LAND & 

MINING CO. 
(Supreme Court of Missouri, Division No. 1. 

June 2, 1916.) 

L Afpeai. and Ebboe <S=»8S2(12)— EsTOPrix 
TO Allcoc Bbbob— Request fob Instbuc- 

TIORS. 

Instructions given at tlte reqaest ol tbe 
plalotiSs were bindins upon them, whether they 
correctly declared the law or not 

(£d. Note.— For other cases, see Appeal and 
Error, Cent Dig. i 3802; Dec. Dig. <S=> 
Si2{12).] 

2. Appeal and Bbbob «=>1097 — Habiclksb 

EbsOB— iNSTBUCnONS. 

Id a atatatory suit at law to aacertain and 
adjudge title to land, error, if any, in the refusal 
of an inatrnctlon for plaintitF that the jury in 
passinir upon the defendant's good faith and 
tboee through whom it claimed in taking poa- 
aession of the land, should consider all the facts 
in Uie case, including the purposes for which the 
land was required, the time for which posses- 
aiott was claimed, the nature of the improve- 
ments, the extent of the cultivated part, etc., 
was not reversible, where there was no evidence 
tbat defendant and those through whom it claim- 
ed did not enter into the possession of the prem- 
ises in good faith, and where the evidence show- 
ed that the chief value of the land consisted in 
the timber. 

[EM. Note.— For other cases, see Appeal and 
Error, Cent Dig. i 4229; Dec. Dig. «=»1067; 
Trial. Cent Dig. f 475.] 

3. Adverse Possession *=»8t— "Good Faith" 

— "LAWnjI. POBSEaBION." 

Good faith in taking possession of and hold- 
ing land under deeds means honesty, the ab- 
KDce of fraud or deceit; and "lawful posses- 
sion" means entering upon and holding land and 
claiming to be the owner, and not as an intruder 
or trespasser (citing Words and Phrases, vol. 
i. p. 3117). 

[I3d. Note.— For" other cases, see Adverse Poe- 
aession. Cent Dig. {g 488-500; Dec. Dig. «=> 
84. 

For other definitions, see Words and Phrases, 
nrst and Second Series, Good Faith; Lawful 
Possession.] 

4. Adverse Possession €=»84 — Colob of 
Title— Good Faith. 

Where defendant and its predecessors took 
possession of the land involved in a statutory 
suit to ascertain and adjudge title under color 
of title derived through tax deeds, the question 
of Kood faith was immaterial. 

[Ed. Note. — For other cases, see Adverse Pos- 
session, Cent Dig. f{ 48S-500; Dec. Dig. €=» 
84.] 

5. Adverse Pobsesbion tSsslB — Elbhems — 
Statute. 

Under the 10- year statute of limitations, all 
that the law requires Is that the claimant's pos- 
session shall be taken and continued in ^ood 
Eaith, and be exclusive, open, and notorious, 
adverse to the world, and continuous for a pe- 
riod of 10 years or more, prior to the date of 
rait by the owner of the title to recover the poe- 
Hssion. 

[Ed. Note.— For other cases, see Adverse Pos- 
a^sion. Cent. Dig. g! 65, 67-76 ; Dec. Dig. ®=» 
13. 

For otber definitions, see Words and Phrases, 
first and Second Series, Adverse Possession.] 

I AFPKAl- AND EBBOB «=»1051(2)— HABlOJlSa 

Krbob— AoMiasiOR or Evidence. 

In a suit at law to ascertain and adjudge 

ille to land, error, if any, in the admission of 

rridence as to the good faith of the defendant 

md ita predeccBsers in taking possession of the 



land, was not reversible, when taken in connec- 
tion with testimony as to the character of the 
furnace and improvements upon the land, and 
the fact that witness was simply stating what he 
thought the facta showed, anu that there was no 
evidence to the contrary. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. | 4163; Dec. Dig. «=» 
1051(2).] 

7. Advebse Possession ^=3114(1)— Evidence 
— Good Faith. 

In such case, good faith, if involved, might 
be shown by direct testimony as well as by in- 
ferences from the facts in the case. 

[Ed. Note.— For other cases, see Adverse Pos- 
session, Cent Dig. {{ 682, 683 ; Dec. Dig. <£=» 
114(1).] 

8. Advebse PosSEssioir «=a2S — Poso^sion 
BY Tenant— ElxTENT. 

While possession of land may be maintained 
by a tenant, such possession can extend no fur- 
ther than the terms of the lease or contract by 
which the tenant holds. 

[Ed. Note.— For other cases, see Adverse Pos- 
session, Ont Dig. fl 116-120; Dec. Dig. «=9 
25.] 

9. Advixse Possession €=>116(7)— Instbuc- 
tion— Extent of Possession. 

In a suit at law under Rev. St 1909, g 
2535, to ascertain and adjudge title to land, an 
instruction that while possession might be main- 
tained by a tenant it could extend no further 
than the terms of the lease or contract by which 
the tenant held was properly refused as mislead- 
ing, where the evidence showed that defendant's 
tenants, in addition to having possession of defi- 
nite tracts of land, were also defendant's agents 
in caring for the remainder of the lands, and 
that the land constituted one tract and had al- 
ways been so treated by all of the parties to the 
suit 

[Ed. -Note.— For other cases, see Adverse Pos- 
session, Cent. Dig. g 66 ; Dec. Dig. <S=>116(7).J 

10. Advebse Possession €=3101— Possession 
OF PABT—ErrECT— "Tract." 

The possession of a part of a "tract," which 
means a contiguous body of land embraced in 
one deed, with a claim of the whole, and the 
usual acts of ownersliip over the entire tract, es- 
tablishes possession of the whole which will 
ripen into title under the statute of limitations 
(Rev. St. 1909, g 1882). 

[Ed. Note.— For other cases, see Adverse Pos- 
session, Cent Dig. gg 575-589; Dec. Dig. ^=> 
101. 

For other definitions, see Words and Phrases 
First and Second Series, Ttact.] 

11. Advebse Possession iS=»13— Thibty-Teab 
Statute. 

Under the express provision of Rev. St 
1909, I 1SS4. a showing that the title had issued 
from the T'nited States more than 30 years prior 
to the beKinnin^ of the suit, that plaintiff failed 
to bring bis action within 31 years after leaviuR 
possession of the land, and .that defendant and 
his predecessors had been in the possession ever 
since claiminB title thereto under color of tax 
deeds, established title in the defendant. 

[Ed. Note. — For other cases, see Adverse Pos- 
session, Cent Dig. gg 65, 67-76; Dec. Dig. <8=3 
13.] 

Appeal from Circuit Court, Dent County, 
L. B. Woodslde, Judge. 

Action by Mary E. Schofleld and others 
against the Harrison Land & Mining Com- 
pany. Judgment for defendant, and plain- 
tiffs appeal. Affirmed. 

See, also, 139 Mo. 467, 41 S. W. 234, 61 
Am. St Rep. 464. 



^— ,rar other cum sm same topic and KBT-^t^MBBR io all Key-Numbared DlgeiU and Index** 



L^.^ijoH h»» V.-I 



'gl.e 



«2 



187 SOUTUWiSSTERN REPORTER 



(Mo. 



This was a suit at law under section 2535, 
R. S. Mo. 1909, to ascertain and adjudge title 
to ^0 acres of land situate in Dent county, 
particularly described In the petition. It 
was bought October 24, 1911. The trial re- 
sulted In a verdict and Judgment for the de- 
fendant, and the plaintiffs duly appealed the 
cause to this court The paper title to the 
land was conceded to be In the plaintiffs, 
but they had paid no taxes on the same 
since before 1879., The defendant Interposed 
the 10 and 30 year statutes of limitations as 
a defense in the case. The defendant, 
through mesne conveyances, claimed title to 
said lands from Joseph ▲. Schofleld, the an- 
cestor of plaintiffs. Said lands were sold by 
the sheriff under tax judgments against said' 
Schofleld ; part In the year 1879, and the re- 
mainder in 1880. 

It is conceded, however, those deeds were 
void and conveyed no title whatever to the 
lands; but defendants contend, and their 
evidence tended to show that when It and 
those through whom It claims title took pos- 
session of the lands under said deeds, they 
constituted color of title. That shortly after 
the sale of said lands for taxes, the Nova 
Scotia Iron Ck)mpany duly acquired the same 
from the purchasers at said sales, and some 
10,000 additional acres In the same vidnlty 
from other parties, and took possession 
thereof and constructed a large blast furnace 
for the manufacture of pig iron, and built a 
good-sized town thereon, consisting of stores, 
residences, and bams, for the accommoda- 
tion of the several hundred people who were 
employed by the defendants' predecessors, at 
a cost of more than $200,000. Said com- 
pany, In the year 1880, began the manufac- 
ture of pig Iron at said furnace, and con- 
tinued to so do for 4 years, and cut the 
timber from several thousand acres of said 
land for fuel in the operation of said fur- 
nace. G^hat said plant was a losing propo- 
sition, and after 4 years it was dismantled 
and moved to another state. The residences, 
bams, etc., were left standing for the ac- 
commodation of such of the former employes 
who were left In charge of the property. 

The principal stockholders, Harrison, Lack- 
land, and Howard, In the meantime, had 
loaned to said company, it being a corpora- 
tion, $20,420, and hi satisfaction of that in- 
debtedness, the company conveyed to them 
all of its property, including the land In con- 
troversy; and later in the year 1890, said 
stockholders incorporated the defendant 
company and conveyed all of said land to it 
by one deed; and that since said time said 
company has been claiming said lands, pay- 
ing the taxes thereon and protecting the tim- 
ber, as will be presently stated. That T. J. 
Scott,, one of the former employes of the 
Nova Scotia Company, was left in charge of 
all its lands as agent or superintendent, and 
as such he leased several small tracts of the 
land to various persons; one to S. 0. Ram- 
sey, a part of the land in controversy. That 



was In the year 1883 or 1884, Under the 
agreement Ramsey was to' cultivate and 
fence as much of the land as he desired, and 
in consideration thereof he was to preserve 
and protect the timber on the adjoining lands 
of the company. In pursuance to that agree- 
ment Ramsey inclosed and cultivated 10 or 
12 acres of this land, and always recognized 
the defendant as his landlord, and patrolled 
the adjoining lands of defendant and pro- 
tected It from trespassers. That after the 
dissolution of the Nova Bcotla Company B. 
li. Dye procured some kind of a title to the 
land in section 11, another part of this land, 
and took possession of the same and built a 
box house thereon and operated a sawmill 
on an adjoining section. Dye claimed under 
a deed based on what was known as the But- 
ler sale of Scotia lands. Butler obtained a 
Judgment and sold some of the Scotia lands 
after the conveyance to Harrison, Lackland 
and Howard. Butler attacked this convey- 
ance, but was unsuccessful. The rights of 
the parties were determined In this court 
and the case is reported In Butler v. Harri- 
son Land & Mining Co., 139 Mo. 467, 41 S. 
W. 234, 61 Am. St Rep. 464. During the 
time Dye occupied the lands, he built a small 
house, cleared out and fenced about 12 acres 
of the land and cut the pine timber off of 
the southwest quarter of section 11. In a 
subsequent action of ejectment against him, 
the possession was adjudged to the Harri- 
son Land & Mining Company, and Dye va- 
cated the land and the company took pos- 
session, through Its agent, D, B. Ball, and 
placed a tenant in the house, and has ever 
thereafter kept one there. 

The Harrison Land & Mining Company 
employed D. B. Ball as agent to look after 
all of the lands belonging to' this company 
and to lease the lanus to tenants and to pro- 
tect and care for all of the lands and tim- 
ber, and prevent trespassing. Mr. Ball has 
acted in this role for more than 18 years, at 
the date of this trial, and has gone over the 
lands periodically about once a month and 
has prevented practically all trespassing on 
said lands, except by Dye, who claimed to 
have bought the land. This was particularly 
true of the lands In dispute, which were also 
under the protection of Mr. Ramsey. The 
land is rough, not worth much without the 
timber. Only about 40 acres in section 11 
is susceptible to cultivation. 

The possession of Ramsey was open and 
notorious, and the possession of the land in 
section 11, by Cisco, Hulsey, and Sapaugh, 
under the permission of Ball, was open, no- 
torious, and exclusive. 

It was admitted by the plaintiffs in the 
trial that neither they nor their ancestor 
had paid any taxes on the lands for 30 years. 
It was proven they nev» had been in the 
possession of the lands, and that since the 
date of the tax sale the Nova Scotia Iron, 
Company and its succeason tai title had di 
Charged all of the taxes on the same and 



on T 
nd O 



Ho.) 



BCaOVIESJD V. BARRISON LAISTD <fe MINXNG GO. 



had been tHalmihg -the tttle thereto. Atta 
the NoTa Scotia Iroa' Company acqnlred' It, 
all of the lands which they owned were 
treated and oonT^ed as one tract to the 
three stockholders and from them to the de- 
fendant, and the plalntlfCs' ancestor and pred- 
ecessors In title at no time conveyed the 
Unds tn any other way. 

The evidence for the plaintiffs tended to 
dlq)n>Te adTorse possession of the defendant 
for the requisite period of time to ripen in- 
to aa& 

J. D. Gostln and Jackson C. Stanton, both 
of Kansas City, and R. Li. Horsman, of Salem, 
for appellants. Wm. F. JEilmer, of Salem, for 
respondent. 

WOODSON, J. fefter stating the facts as 
above). [1] I. The court, at the request of 
the plaintiffs, gave a number of instructions 
vhich need not be questioned and need not be 
considered, as they are binding upon them, 
whether they correctly declare tlie law or not. 

[2] Oonnsel for plaintiffs requested the 
oonrt to instruct the Jury that in passing 
npon good faitli of the defendant, and ttiose 
through whom tt claims, in taking possession 
of the land that they should take into consid- 
eration all of the fiicta and circumstances In 
the case, Including the purpose for which the 
land was required, the length of time for 
whtdi said possession was claimed, the char- 
acter and nature of the improvements, if any, 
the purposes for which the land was used, 
the extent of the cultivated land compared 
with the amount of tillable land In the whole 
tract, etc. This instruction was by the court 
loosed, to wlilcb action of the court the 
plaintiffs duly excepted. 

If error, that action of the court was not 
terersible error, for the reason that there was 
DO evidence Introduced at the trial which 
tended to show that the defendant and those 
through whom it claims did not enter Into 
the possession of the premises in good faith. 
While that fact was not expressly admitted, 
jet the uncontradicted evidence conclusively 
thews that this land, with many more thou- 
nnds of acres, were purchased for the pur- 
pose of furnishing a site for a large and ex- 
pensive iron furnace, as well as the necessary 
fuel for Its operation. That tn pursuance to 
that design, the furnace and many buildings 
—stores and residences — ^were constructed at 
a large outlay of money, labor, and materi- 
als, and that the same was oi>erated for 4 
years in the manufacture of pig iron, and 
that the timber on several thousand acres of 
the land was cat therefrom for fuel for said 
fomaee. 

It was also practically conceded that the 
land was not fit for agricultural purposes, 
aave about 40 acres, and that Its chief value 
consisted of the timber growing upon it 

[3] There is nothing In that evidence re- 
motely indicating the lack of good faith on 
tbe part of the defendant in taking posses- 



sion of and Jmldlhig said ladds ttnier said, 
deeds; but upon- the contrary, it strongly 
tends to sbow,th» best of faith upon their part. 
0«wd faith means "honesty, vrithibut .frand or 
deceit." Words and Phrases, vsol. 4, p; 8117, 
and "lawful possession" means entering up- 
on nod holding land and claiming to be the 
owner, and not as an Intruder or trespass- 
er. CoUins r. Pease, 146 Mo. 186, 47 S. W. 
92S; Ab^es v. PUhnan, 261 Mo. 358, 168 S. 
W. loc. clt. 1184. 

[4] Moreover, it is undisputed that the de- 
fendant and its predecessors took possession 
of these - lands under color of title derived 
through the tax deeds before mentioned, and' 
under those facts the question of good faith 
Is ImmateriaL Bradley v. West, 60 Mo. 33; 
WUkerson v. BUers, 114 Mo. 245, 21 S. W. 
614. This point is decided against the plain- 
tiffs, 

[6] XL Tbe plaintiffs also requested the 
court to instruct the Jury: 

"That under the claim of color of title to the 
entire premises, if accompanied by the exercise 
of the usual acts of ownership over the unoccu- 
pied portions, amounts to the possession of the 
whole tract dalmed, yet such possession of the 
occupied portion must be so strict and definite 
in character and the acts of ownership so cus- 
tomary and usual, as to amount to a public 
notice of claim of title. And that If you believs 
that the land was susceptible of a more strict 
and definite possession Uian that claimed by 
the defendant, or that defendant's acts of own- 
ership, over the unoccupied portion, were so 
loose, UDcertaiia, and indefinite as to not amount 
to public notice of its claim of title, your verdict 
should be for the plaintiffs." 

The language of this instruction Is highly 
misleading, and Imposes a higher degree of 
occupancy upon the claimant than tbe law 
requires, and the court, for those reasons, 
properly refused to give it to tbe Jury. Un- 
der the 10-year statute of limitations all the 
law requires is that the possession of the 
claimant shall be taken and continued in 
good faith, which must be exclusive, open, 
and notorious, adverse to the world, and con- 
tinuous for a period of 10 years or more prior 
to the date of the institution of the suit, by 
tbe owner of the title, to recover tbe posses- 
sion from the former. 

The vice of this instruction consists in 
declarations of law regarding the "strict and 
definite character oif the acts of ownership!' 
imposed by the law upon the defendant, 
amounting to '*public notice of its claim of 
tlUe," and that if the Jury find, "that the 
land sued for in this case was susceptible of 
a more strict and definite, possession than 
that claimed by the defendant," etc., then 
they should find for the plaintiffs. 

This Instruction simply means that before 
a person can acquire title to real estate by 
adverse possession, his occupancy thereof or 
his acts of ovimersbip exercised over It must 
be as complete or perfect as the character 
of the land will permit. Ko such require- 
ment is made by the law, nor have I ever 
seen a case so 
would be not 



3 oy uie law, nor nare i ever 
!0 holding. 8n<ii a possessim C^ /-^/^cs\c> 
only impracticable, but so ex-^y VjVjiJV IC 



64 



18T SOUTHWBSrraftN BSSPOBHSB 



<Ma 



penaive and andnous that tltli^ to lands coold 
never be acquired by adverse possession. 

That Instruction was properly refused. 

[(, 7] III. In connection with the previous 
question, counsel for plaintiffs complain of 
the action of the court In permitting Scott 
to testify regarding the good faith of the 
defendant and Its predecessors In taking pos- 
session of the land. 

This testimony, If erroneously admitted, 
did not constitute reversible error, for the 
reason that It was given in connection with 
his testimony as to the character of the 
furnace constructed, the nnmber and charac- 
ter of the stores, buildings, dwellings, and 
other houses erected In connection therewith, 
and their cost, about $200,000, as well as tht> 
total number of acres of land pnrchased in 
that vicinity, etc. 

This testimony, which consisted of a sin- 
gle question and answer, and when read in 
connection with its context, makes it per- 
fectly apparent he was not trying to give his 
own opinion as to the good faith of the de- 
fendant, and its predecessors In taking pos- 
session of his land, but simply stating what 
he thought the facts stated tended to show 
in that regard, and as there was no evidence 
to the contrary, no harm was thereby done 
the plaintiffs. Besides that, where the ques- 
tion of good faith Is Involved In a case of 
this character, that fact may be shown by 
direct testimony, as well as by Inference 
from the facts and circumstances In the case. 
Ency. of Evidence, vol. 7, p. 96; Abeles v. 
Plllman, 261 Mo. 359, 168 S. W. 1181. 

[1-10] IV. Plaintiffs' fourth refused In- 
struction told the Jury: 

"That while possession of land may be main- 
tained by a tenant, such possession can extend 
no further tlian the terms of the lease or con- 
tract b.y which the tenant holds." 

Tills instruction correctly announces a cor- 
rect abstract proposition of law, but it is 
misleading in this case; first, because the 
evidence tended to show that the tenants of 
the defendant, or at least some of them, in 
addition to having possession of definite 
tracts of land, were also the agents or super- 
intendents of the defendant In caring for 
and keeping trespassers off the remainder 
of its lands;- and, second, because the evi- 
dence tended to show that the land In dis- 
pute constituted one tract, and had always 
been so treated by all of the parties to this 
suit All of it had been embraced in one 
deed in every conveyance made, except one. 

A tract of land is defined to be "a con- 
tiguous body of land embraced in one deed." 
Words and Phrases, vol. 8, p. 7036 ; Gaines 
V. Saunders, 87 Mo. loa clt 563; Rannels 
T. Rannels, 62 Mo. 106 ; Hughes ▼. Isreal, 73 
Mo. 638. 

The law is well settled that the posses- 
sion of a part of a tract of land with a claim 
of the whole, with the usual acts of owner- 
ship over the entire tract, establishes pos- 



session of the whole, and snch pouession will 
ripen into title under the statute of limita- 
ttoDS. Section 1882, B. S. Mo. 1900; Heine- 
mann v. Bennett, 144 Mo. 113, 45 S. W. 1092; 
Herbst -v. Merrifleld, 133 Mo. 267, 84 S. W. 
671; Stevens v. Martin, 168 Mo. 407. 68 S. 
W. 347; Brown v. Hartford, 173 Ma 183, 
73 S. W. 140; Thompson f. StilweU, 253 
Mo. 89, 161 S. W. 681. 

[11] y. It is finally insisted that th« evi- 
dence did not make out a case for the de- 
fendant under the 30-year statute of limita- 
tions. We cannot lend our concurrence to 
that proposition. The evidence tended to 
show that neither the plaintiffs nor those 
under whom they clalta title had been in 
actual possession of the land or had paid any 
taxes thereon at any time within 30 years 
prior to the date of the Institution of this 
suit, nor within 1 year thereafter; that the 
title had Issued from the United States more 
than 80 years prior to the institution of this 
suit; that the plaintiffs failed to bring their 
action within the 31 years after leaving the 
possession of the land; and that the de- 
fendant and those throu^ whom it claims 
have been In the possession ever since, claim- 
ing title thereto under color of the' tax deeds 
before mentioned. 

This evidence brings the case squarely 
within the provisions of section 1884, R. S. 
1909. known as the 30-year statute of limita- 
tions, and as construed by this court in the 
cases of Abeles v. Plllman, 261 Ma 880, 168 
S. W. 1180; Campbell v. Greer, 200 Mo. 190. 
108 8. W. 64. 

Finding no reversible error in the- record, 
the Judgment of the dreuit Is affirmed. All 
concur; BOKD, J., in paragraph S and Te> 
suit. 



KANSAS CITY, C. C. & ST. J. RT. CO. y. 
COUCH et al. (No. 17C15.) 

(Supreme Court of Missouri, Division No. 1. 
June 2, 1916.) 

1. Emiitent Domaiw «=»222(2) — Oowdbiina- 
TiON Proceedings— Damages— iNSTBUCTiow. 

In condemnation cases, it is proper for the 
court to direct the attention of the jury to facts 
in evidence, which, if proven, may, in their opin- 
ion, affect the market value of the laud, and 
to direct them that such evidence is proper for 
them to consider in that connection. 

[EM. Notie. — For other cases, see Eminent Do- 
main, Cent. Dig. S 563; Dec. Dig. <g=»222(2).] 

2. EuiNEifT Domain «3>222(5)— Pbqosbdimqs 

— Damages— In^buc'tion. 
In a railroad's statutory condemnation suit 
it was error to instruct that in estimating dam- 
ages the jury would consider the quality, qaanti- 
ty, and value of the land taken, and also the 
damage a,nd depreciation in value of the remain- 
der of the farm not taken as a right of way by 
reason of the railroad's running through It, con- 
tinning that they ' would also consider the aise 
and shape of the two tracts into which the farm 
was dividetl. the cuts and fills upon the same, 
the inconveiiience in getting water, etc., and any 
other fact or facte 'which they believed would 



^s»For other caoaa sea saina topic and KET-NCMBBR in alt Kex-Numbered Digest* and Indexes 



^le 



JIo.) 



KANSAS CITY, O. C. 4 ST. J. RY. COi T COUCH 



bare a teodencr to depreciate the value of the 
farm. 

(Ed. Note.— For other cases, see Eminent Do- 
main, Cent. Dig. g 566; Dec. Dig. <S=222(5).] 

3. Trial *=>252(1)— Iwstbuction. 

.\n instruction ansupported by evidence in 
tbt record is erroneons. 

fEd. Note.— For other cases, see Trial, Cent. 
Dig. H 696, 612; Dec Dig. «=252(1).] 

4. Eminent Domaiw «=>222(5)— Pboceedirgb 
-Dam.\gbs— Imstbuction. 

An instruction requiring the jury to estimate 
t'le (lamase occurring, by reason of a chnuge in 
to? plan on which the commissioners mnde their 
rcthirt and assessment, between December, 1911, 
w-'i October, 1912, which conld only be done b^ 
istimatiug the amount of damage as the condi- 
;i i;s existed at the former period, was erroneous. 
fEd. Note. — For other cases, see Eminent Do- 
main, Cent. Dig. f 566; Dec. Dig. «=»222(5).] 

5. Eminent Domain «=>222(5)— Pbocekdinos 

— DaILAOES — iHBTKUOnON. 

An instruction requiring the jury to separate- 
ly estimate as a special injury the diaerence 
in conditions between December, 1911, and Oc- 
tober, 1912, an interval in which the plan on 
irhich the commissioners made their report and 
usessment waa changed, waa erroneous. 

!Ed. Note. — For other cases, see Eminent Do- 
Dain, Cent. Dig. g 5^; Dec. Dig. <g=j222(5).] 

}. Eminent Dovain $=»203(1)— Pboceedinob 

—DAMAQE8— Mattes fob Jubt. 
The assessment and report of the commis- 
Doners were not proper matter for the jury's 
^.msideration in assessing damages. 

[Ed. Note.— For other cases, see Eminent Do- 
nain. Cent. Dig. g 542 ; Det Dig. <S=>203(1).] 

I. Eminent Domaih ^ssISO—Daicages— Ex- 
cessive Vebdict. 
Where the evidence as to the damage from 
:lie taking and from injury to the remaining land 
iitcnded from leas than $500 to more than $26,- 
Xi}, verdict for $9,674.34 waa not so excessive as 
:o nnthorize interference by the Snpreme Court. 
(Ed. Note. — For other cases, see Eminent Do- 
nain. Cent. Dig. g 402; Dec. Dig. «=3l50.] 

Appeal from Circuit Court, Lafayette Coun- 
y; Samuel Davis, Judge. 

Condemnation suit by tbe Kansas City, 
Hay County & St. Joseph Railway Company 
igainst Joseph W. Couch and others. From 
he award of damages to defendants, plaln- 
iff appeals. Reversed, and cause remanded. 

Bowersock, Hall & Ilook and Beardsley 
t Beardsley, all of Kansas City, for appel- 
aut. Fraiicls M. Wilson, of Kansas City, 
Charles Lyons, of Lexington, James P. Cbinu, 
if liiggiusville, and Carl L. Ristine, of Lex- 
cgtou, for respondents. 

BROWN, C. This Is a statutory condem- 
lation suit to appropriate land for the cou- 
trutUon and operation of plaintiff's rail- 
Dad. The suit was Instituted in Platte 
ouaty, where the land is situated, and was 
■einoved by change of venue to Lafayette 
onnty, where it was tried and resulted in 
jie rerdlct and Judgment for $9,674.34, from 
vhich this appeal is taken. 

The plaintiff is a railroad corporation or- 
taoized and incorporated under the general 
uws of the state of Missouri for the pur- 
lose of constmcttng, maintaining, and oi>- 



crating lines of railroad from Ki 
.St. Joseph and from Kansas City 
Springs. The usual preliminary 
were had, and the commissioners a 
damages In favor of defendants 
From this award both parties appea 
circuit court, the trial resulting t 
stated. 

The land with respect to which th 
ages were awarded Is a stock farm 
acres, 480 acres of which consists of 
quarter sections lying side by side, exte. 
a mile and a half east and west, and th 
malniug ICO acres consists of the north 
of two quarter sections lying south of 
two west quarters first mentioned. Defei 
ants' farm buildings are located at the sou. 
line of the middle quarter section some llttl 
distance east from a public road extending 
north and south, approximately dividing the 
middle quarter section and the half quarter 
south of It Into equal parts, and west of the 
railroad, which enters the farm across tbe 
northeast comer of the east of the two SO's, 
close to the southwest comer of the east 
quarter section, and runs northwesterly and 
in a straight line diagonally across the pub- 
lic road, leaving the farm at the north line, 
and leaving approximately 50 acres of the 
quarter and 210 acres of the farm east of 
tbe right of way, which amounts to 6.38 
acres. The land along the right of way Is 
uneven, so that the construction consists 
mostly of cuts and fills. The deepest cut is 
16 feet on one side and 14 feet on the oth- 
er, while the highest fill or embankment is 
26^ feet The defendants ordinarily feed 
upon the place about 250 head of cattle each 
year. The feed lots are east of the railroad 
and publla road, where there Is a spring 
which furnishes an abundance of water for 
the stock. The cultivated land and the 
most of tbe pasture is on the west side of 
the raUroad, where there is a stream which 
furnishes water part of the year nnd fails 
In a dry time. The spring and the stream 
provide the only surface waters on the farm. 
The testimony as to the value of the land 
taken ranged from $75 to $200 per acre, 
while the testimony with reference to the 
damage to the remainder of tbe farm covered 
the latitude lying between nothing and $40 
per acre. 

The giving of certain instructions is as- 
signed as error. We will notice these as they 
require consideration in the opinion. It is 
also assigned for error that the verdict Is 
so clearly excessive that it ought not to be 
permitted by this court to stand. 

[1,2] 1. Defendant's seventh instruction, 
of which tbe appellant complains, opens with 
the following proposition: 

"The court instructs the jury that, in esti- 
mating the damages in controversy, you will take 
into consideration the quality, quantity, end val- 
ue of the land taken by the railway company 
for a right of way, and also tbe damage and de- 



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187 S.W.-« 



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<86 



187 SOUTHWESTEaN SEPORTBH 



(Sfo. 



-predation In value of the remainder of the farm 
of the defendants not taken as such rigrht of way, 
by reason of said railroad running through it.' 

This sentence constitutes a distinct and 
separate proposition conclnding with a pe- 
riod, and presents in general terms the prin- 
di^es which should govern the jury. Every 
element of damage is included in its gener- 
al terms. It then proceeds to enlighten them 
as follows: 

**Tou will ttUo consider the size and shape of 
the two tracts into which tbe farm is divided by 
said railroad running through it; the cuts and 
fills upon the same; the inconvenience in get- 
ting to water; the inconvenience in getting from 
one part of the farm to another on account of 
the location of said right of way, and any oth- 
er fact or facts in testimony, which you may 
believe will have a tendency to depreciate the 
market value of said farm for the purpose for 
which it is used or adapted." 

In this sentence we have emphasized the 
word also, wbich always means, in such a 
connection, "In addition to," or "likewise," to 
direct attention to the fact that it authorizes 
damages for the several incidents of what it 
assumes to be personal inconveniences wbich 
will follow the appropriation and use of the 
right of way, to be added to the damage 
and depreciation in value of the remainder 
of defendants' farm by reason of the railroad 
running through it. But it proceeds in the 
same sentence to tell them that they will 
take Into consideration any other fact or 
facts In testimony which they may ielieve 
wiU have a tendency to depreciate the mar- 
ket value of the farm for the purpose for 
which it is used or adapted. The respond- 
ent suggests that the adjective member of 
this latter clause, in addition to being de- 
scriptive of the words "any other fact or 
facts" as appears from Its grammatical po- 
sition, refers back to all that preceded it in 
the sentence, and directs the attention of 
the jury to an implied Intention to apply the 
same description to them. Thus the court 
tells the Jury that certain facta have been 
established, that they are inconveniences and 
elements of damage, and that they will scan 
the evidence for other facts of the same kind. 
The suggested cure is worse than the disease. 
The court does not stop here, but, after a 
pause Indicated by a period, proceeds: 

"You will deduct from these amounts the bene- 
fits, if any, peculiar to said tract of land aris- 
ing from the running of the railway through it" 

The best that can be said of this instruc- 
tion is that the Jury might possibly Interpret 
It innocently. Referring to one which con- 
tains a part though not all of these objec- 
tionable elements this court lately said: 

"While a strained construction of the lan- 

?:uage of en instruction is not a sensible device 
or administering justice, neither is a loose or 
illogical construction. As put by Professor 
Gray: 'A loose vocabulary Is the fruitful moth- 
er of evils;' and we may add that a loose con- 
struction of loose language is the nursing father 
of many more. Giving the language of the in- 
struction a sensible interpretation, it is plain 
that the jury were told to consider the cost of 
building the necessary fences along the road and 
the damage to the whole- tract bf land of wkich 



that taken for the road forms a part, and they 
were told that from the 'sum' of these, together 
with the value of the land taken, they were to 
deduct the benefits, If any, peculiar, etc. That 
meaning is a fair and legitmiate one, nay, the 
only one, shining on the very face of the instruc- 
tion Itself." Howell v. Jackson County, 262 Mo. 
403, m S. W. 342. 

While the principle Is well establlabed that 
In these cases It Is proper for the court to 
direct the attention of the jury to facts In 
evidence which, if proven, may, in their opin- 
ion, affect the market value of the land, and 
to direct them that such evidence Is proper 
for them to consider in that connection, it is 
nowhere held that such matters as are enu- 
merated In this instruction may be proven as 
distinct items of damages, or that It is with- 
in the province of the judge to determine 
their existence, their Injurious character, or 
that they affect the market value of the re- 
maining land. This instruction In the form 
in which it was given constituted reversible 
error. 

[3-6] 2. The giving for respondents of their 
instruction No. 8 is also assigned for error. 
It Is as follows: 

"The court instructs the jury that the ques- 
tion to be determined by you is the market val- 
ue of the property, as a whole, without the rail- 
road and what will be its market value after tJie 
road is built and in operation. And if the jury 
find that since the assessment of damages in the 
case by the commissioners and the taking of de- 
fendants' land by the railroad company the road 
has been graded through the same upon plans 
different from those upon which the said commis- 
sioners made their report and assessment and the 
changes thus made inured to defendants' injury, 
you will consider the said injury, if any, in esti- 
mating the amount of damages to be allowed to 
defendant for the condemnation and taking of de- 
fendant's land." 

This instruction in distinct terms tells the 
jury that any Injury to the farm caused by 
a change In the plan of the work from that 
upon which the commissioners made their re- 
port and assessment wiU be considered by 
them as a distinct element of damage. We 
cannot Imagine any ground upon which to 
justify this direction. The road was con- 
structed at the time of the trial. It was 
their duty to make their assessment In riew 
of the work as constructed. If It was in- 
complete, it was their duty to make the as- 
sessment In view of the construction which 
It then appeared from the evidence would be 
carried out That they might not be influ- 
enced by the action of the commissioners 
they had no right to know what that action 
had been. Railwa.y v. Roberts, 187 Mo. 309, 
80 S. W. 91 ; Railroad v. Pfau, 212 Mo. 398, 
111 S. W. 10. 

We have carefully examined the record and 
find that there was no evidence of change of 
plans, and that the only office the Instruction 
could have performed was to direct the at- 
tention of the jury to the testimony of a wit- 
ness for respondent named Skillman, who 
testified that the damage to the part of the 
farm not taken was $10 per acre. He was 
lecalled aa. the same dajr by the reqiondent^ 



c^le 



Mix) 



BABKEMT t. FOOTS 



87 



to correct this statement, and tliareapon tes- 
tified tliat it would be about $16 per acre, 
vrhen CToae-exainlBed for the evident purpose 
of elldtlng an explanation of this change, be 
testlfled tbat he was one of the commission- 
ers who made the preliminary assessment, 
ind that he put on 60 per cent, more dam- 
age now than before, because he then sup- 
posed they were going to pat a subway un- 
der tbe grade, although "there was no claim 
at the time one way or the other about it." 

The respondents frankly say in their print- 
ed argument. In substance, that this legiti- 
mate cross-examination to secure an expla- 
nation of a change which occurred so prompt- 
I; Id the mind of the witness, and which 
tmoonted to more than $3,000, was their ez- 
cnse fbr poisoning the mind of the Jury with 
an Intimation that there had been a change 
of JSO per cent. In the condltioDs, between the 
time of the assessment of the commissioners 
in December, 1911, and the assessment by the 
jury in October, 1912. The fact that this 60 
per cent was fairly represented in the ver- 
dict carries with It Its own suggestions. 

The instruction was erroneous because (1) 
there was no evidence In the record to sup- 
port it; (2) because It required the Jury to 
estimate the damage occtirrlng by reason of 
a change of plan between December, 1011, 
and October, 1012, which could only be done 
by estimating the amount of damage as the 
conditions existed at the former period ; (3) 
because it required them to separately esti- 
mate the difference In conditions between 
those periods as a special Injury; (4) be- 
caose It directs the attention of the Jury to 
the assessment and report of the commission- 
ers as an element of their own work; (5) 
because the assessment and report of the 
commissioners were not proper matter to be 
considered by the Jury, while the Instruction 
amoonted to a direction that they should be 
cnisldered. There are other elements of er- 
ror in the Instruction, but those enumerated 
are suffldent to explain our conclusion. 

[7] 3. The evidence as to the amount of 
damage resulting from the taking of the right 
of way and Injury to the remaining land cov- 
ered a wfde field, extending from less than 
$500 to more than ?26,000. After a careful 
examination of the evidence, we have come 
to the conclusion tbat the amount of the ver- 
dict and Judgment, while very substantial, 
Is not so excessive as to authorize our Inter- 
ference with the action of the trial court on 
that ground. 

For the reasons stated In the first and sec- 
ond paragraphs, the Judgment will be revers- 
ed and the cause remanded. 

BAILET, C concurs. 

PER cnBIAM. The foregoing opinion of 
BKOWN, C, Is adopted as the opinion of the 
coort All concur. 



BABBBTT T. FOOTS et aL (Na 1797A.) 

(Supreme Court of Missonri, Division No. 1. 
June 2, 1016.) 

L Trusts 4=970— RjcsuunMS Tbubt— FuB- 

RISRINO PUBCBASS PbIOE. 

Where the purchase money for realty is 
paid by two peqsons and title taken in the name 
of one, the land is held by the latter in resalting 
trust in favor of both purchasers in proportion 
to the amount paid by each, and such a trust 
arises by operation of law where the purchase 
money of realty is paid by one person and the 
legal tjtle transferred to another. 

[Kd. Note.— For other cases, see Trusts, Cent 
Dig. U 111, 112 ; Dec. Dig. «=»79.1 

2. Tktists «=>77— Resulting Teust— Fub- 

NI8HINO PUBCHASE PBICK, 

In case of a claimed resulting trust aris- 
ing from the payment of the purchase price of 
realty and title being taken in the nnme of 
another party, the relation of trustee and cestui 
most result from the facts as they existed at the 
time of or anterior to the purchase, and cannot 
be created by subsequent occurrences. 

[Bd. Note. — For other cases, see Trusts, Cent. 
Dig. 8 100; Dec. Dig. «=»77.] 

8. Pabtokbship «s>67 — Pbofebtt or Pabt- 

NEB. 

Where a father, partner with his son, real- 
ized $1,600 for his Oklahoma homestead, which 
be brought to Vernon county. Mo., and deposit- 
ed in a bank in his own name, the money con- 
tinued to be his individual property. 

[Ed. Note. — For other cases, see Partnership, 
Cent Dig. H 05-100; Dec. Dig. <S=»67.] 

4. Fbauduuent Coitvxtakgxs <S=a67(3)— Iir- 

80LVENCT or Debtob. 

Where a father, within two months after 
the maturity of his debt to plaintiff, conveyed 
to bis son all of his real estate and personalty, 
receiving only $600, which was borrowed on 
the land conveyed, and, when judgment was en- 
tered upon plaintiff's note, execution was issued 
and returned unsatisfied, the father was ren- 
dered insolvent by the conveyance to his son. 

[Bid. Note. — For other cases, see Fraudulent 
Conveyances, Cent Dig. i 148; Dec Dig. €=» 
67(3).] • 

6. Fraudutewt Convetawces <9=>fl4(2)— In- 

VALIDITT AS TO EXISTING ObEDITOB— MO- 
TIVES. 

Where a father's conveyance to his son 
rendered the father insolvent, and was made 
without provision for payment of the demand 
of the father's existing creditor, the son agree- 
ing to support the father for life, borrow $500 
on the land, and turn it over to him, such con- 
veyance was invalid as to such creditor, regard- 
less of the motives actuating the father and 
son. 

[Ed. Note. — For other cases, see Fraudulent 
Conveyances, Cent Dig. IS 164, 166 ; Dec. Dig. 

®=04(2).] 

6. Fbauduxknt Convetances «=a06(2)— 

HOLOING PboPXBTT FOB SUFPOBT OIT DebT-' 
OB. 

A conveyance by father to son, which ren- 
dered the father insolvent of land in which the 
son owned a half interest, the son agreeing to 
support the father, result being that after the 
conveyance he held $375 of his father's prop- 
erty for future support, was invalid as to an 
existing creditor of the father. 

[Ed. Note. — For other cases, see Fraudulent 
O>nveyanoes, Cent Dig. U 293-304, 320-322; 
Dec. Dig. «s»96(2).] 



, AU concur. uec. uig. «=9tfo\z;.j ^^^ t 

«=9For otinr esses see same topic and KBT-NUHBBK4n all Key-Numbered OlgesU and todexiii^izea by Vj Vj vJ^ IC 



68 



187 SOUTHWESTERN REPOBTER 



(Mo. 



7. Fbaudui^nt Coktetakces «=»107 — Fa- 
thsb and sor. 

In dealings between father and son, as be- 
tween husband and wife, where the rights of 
creditors are inrolved, their acts should be 
closely scrutinized. 

[Ed. Note.— For other cases, see Fraudulent 
Conveyances, CJent Dig. |§ 347-^330: Dec. Dig. 

8. Feaudolkitt Convetawom «=»299(13)— 
Intent of Debtor— SnrnciENCT of Evi- 
dence. 

In suit to set aside a conveyance of land 
as fraudulent, evidence held sufficient to show 
that a defendant executed and delivered a quit- 
claim deed to the land in controversy to his son 
for the purpose and with the Intent of hinder- 
ing and delaying plaintiff from the collection of 
his debt, and with the pun>o8e and intent of 
placing all his property beyond the reach of 
plaintiff as his creditor. 

[Ed. Note. — For other cases, see Fraudulent 
Conveyances, Cent Dig. S ^0; Dec Dig. «=» 
299(13).] 

9. FttAnDTTLENT CoNVETAWCES €=>301(8) — 

Knowubdge of Grantee — Sufticienot of 

Evidence. 

In suit to set aside a conveyance as frandu- 
lent, evidence held sufficient to show that a 
defendant, who received a conveyance from his 
father, knew that his father owed plaintiff, and 
was desirous of placing his real and personal 
property beyond reach of seizure by plaintiff. 

[Ed. Note. — ^For other cajses, see Fraudulent 
Conveyances, Coit Dig. f 906; Dec. Dig. €=> 
301(3).] 

10. Fraudulent Convetancks «=s>301(3)— 
Motive of GaANiEE— Sufficiency of Evi- 
dence. 

In suit to set aside a conveyance as fraud- 
ulent, evidence held sufficient to show that the 
debtor's son, as grantee, attempted to aid his 
father in placing the land in controversy be- 
yond plaintiff's creditor's reach, and accepted a 
quitclaim deed for that purpose. 

[Ed. Note.— For other cases, see Fraudulent 
Conveyances, Cent. Dig. | 906 ; Dec. Dig. *=s» 
301(3).] 

Appeal from Circuit Court, Vernon Coun- 
ty ; B. O. Thunnan, Judge. 

Suit b7 M. B. Barrett against F. S. Foote 
and another. From a Judgment for defend- 
ants, plaintiff appeala Cause reversed and 
remanded, with directions. 

On September 7, 1912, plaintiff filed In the 
circuit court aforesaid a petition in equity 
against said defendants, and alleged there- 
in that on September 20, 1910, defendant F. 
S. Foote executed and delivered to him a 
promissory note for $310, due December 1, 
1911, with interest from maturity at the rate 
of 8 per cent per annum ; that plaintiff re- 
covered Judgment against snid defendant on 
the altove note In the circuit court afore- 
said on May 15, 1912, for $347.44; that after 
the execution and maturity of said note de- 
fendant F. S. Foote, on January 20, 1012, con- 
veyed to defendant George Foote by quit- 
claim deed the W. % of the S. E. % of sec- 
tion 24, township 35, range 32, situate in 
Vernon county. Ma ; that said last-mention- 
ed deed was duly recorded in Vernon county 
aforesaid; that George Foote Is a son of F. S. 
Foote; that by said conveyance defendant 
F. S. Foote rendered himself Insolvent; that 



said conveyance was without constderation, 
was fraudulent, and made with the intent to 
hinder and delay plaintiff In the collection of 
his said debt. 

The separate answer of George Foobe ad- 
mits that he Is the son of F. S. Foote, and 
alleges that he Is the owner of the land de- 
scribed In petition, and that it Is incumbered 
by a deed of trust securing a certain note 
for $500. He denies every other allegation In 
petition, save that In reference to the convey- 
ance of said land from F. S. Foote to himself. 
Defendant V. 8. Foote filed a separate gen- 
eral denial. 

Evidence. It appears from the record tliat 
on September 20, 1910, defendant F. S. Foote 
executed and delivered to plaintiff a promis- 
sory note of said date for $310, due December 
1, 1911, as described in petition ; that on May 
IS, 1812, plaintiff recovered Judgment against 
defendant F. S. Foote on above note for $347.- 
44. It further appears from the evidence 
that on January 26, 1912, said F. S. Foote, 
while the record owner of the real estate 
aforesaid, cbnveyed the same by qaitclatm 
deed to his s<m, the codefendant herein, for 
the expressed consideration of $3,500. It also 
appears from the testimony that said P. S. 
Foote, at the time of the conveyance of the 
real estate aforesaid, also put in with the 
land his interest in the stock on said farm 
and everything else he had. On February 11, 
1913, a general execution was Issued on the 
above Judgment, directed to the sheriff of 
Vernon county aforesaid, and on May 12, 
1913, said execution was returned unsatisfied, 
because the sheriff could find no property of 
defendant F. S. Foote in said county. 

Defendants testified that F. S. Foote owed 
George $200; that the latter was to go in as 
part of the consideration George wa» to pay 
for the laud ; that George was the owner of 
the undivided one-half of said land, and was 
to pay his father $1,275 for the remaining 
half Interest; that after the quitclaim deed 
was made to George the latter borrowed 9500 
on said land and turned that over to his fa- 
ther as part payment of the purchase money ; 
that George was to keep liis father, furnish 
him a home, pay his doctor bills,, and give 
him a decent Interment. The remaining $575 
of purchase money, it Is claimed, was to be 
settled in above maimer. Other facts ap- 
pear in the record, which will be considered 
in the opinion to follow. 

The trial court, after hearing the evidence, 
found in favor of defendants, and entered 
Judgment accordingly. Plaintiff in due time 
filed his motion for a new trial, which was 
overruled, and the cause duly appealed to 
this court 

A. E. Elliott of Nevada, Mo., for appellant. 
A. J. King, of Nevada, Mo., for respondents. 



RAILET, O. (after staUng the facts as 
above). In tlew of the impeaching testi- 
mony offered by respondents as to the genep. /Ip 
C=>For other cbms ise luna topic and KBY-NUMBER In all Key-Numbered Dlgeau and IndexM t3 



Ha) 



BARRBTT v. yoOTB 



il repatatlon of XL N. Ganego for veracity 
D Uie commonitr where be lived, we will not 
noslder his testimony in aispoalng of the 
sse. Leaving out of consideration the Im- 
wachiiig testimony aforesaid, and the oral 
estlmony of George Foote in behalf of de- 
endaoU, the remainder of the evidence con- 
Isted of deposltioiu and other record tes- 
imon;. We therefore see no reason for 
leferiing to the conclusion reached by the 
riaJ court on the facts disclosed by this 
ecord. 

[1,2] I. What were the respective interests 
( defendants in the land in controversy 
rben it was bought in December, 1908, and 
be title thereto taken In the name of de- 
aidant F. S. Feote? Where the purchase 
wney for real estate Is paid by two iudlvld- 
ils, and the title is taken in the name of 
ne, it Is held by the latter as a resulting 
nut Id favor of both purchasers in propor- 
OD to the amount paid by them respective- 
I. Baomgartner v. Quessfeld et al., 38 Ma 
£ dt. 41; Miller et al. v. Davis, 60 Mo. 
H; HaU v. Hall, 107 Mo. 108, 17 8. W. 
11; Plumb V. Cooper, 121 Mo. loc. clt. 675, 
I S. W. 678; Oondit v. MaxweU, 142 Mo. 
K. cit. 274, 275, 44 8. W. 467; Meyer Bros. 
TDg Co. V. White, 165 Mo. loc. dt. 143, 144, 
i S. W. 295 ; Wrightsman v. Bogera, 239 
lo. loc. dt. 428, 144 8. W. 479. A resulting 
vst arises by operation of law, where the 
irchaae money of real estate is paid by 
le person and the legal title is transferred 

1 another. The relation of trustee and 
stui que trust in such cases must result 
DID the facts as they existed at the time 
'■, or anterior to, the purchase, and cannot 
! created by subsequent occurrences. Kelly 
Johnson, 28 Mo. loc. clt 251, 252; Rlchard- 
T. Champion, 143 Mo. loa dt 544, 45 8. 
■ 2S0; Stevenson v. Haynes, 220 Mo. loc. 
L 206, 119 S. W. 346; Shelton v. Harrison, 

2 Mo. Ak>. loc dt 418, 167 8. W. 634, 
id cases cited. It Is daimed that a result- 
t trust was created in favor of George 
wte at the time the land in controversy 
« conveyed to his father In December, 
08, because of the alleged payment by 
orge of $1,275, or one-half the purchase 
mey due on said land. Keeping in mind 
i well-estabUshed prludples of law hereto- 
» referred to, we will proceed to ascer- 
n what part If any, of the purchase 
iney of the land in controversy, was paid 

George Poote. 

It Is claimed by defendants that they 
n partners in Oklahoma, before coming 
Vernon county, Mo., and that they were 
^Sed in raising cattle and horses, and 
'mlng, while there. No particulars are 
ited with reference to this alleged part- 
rship, but for the purposes of the case we 
U accept their contention as well founded, 
cording to their testimony they were equal 
rtners, and $950 of their partnership funds 
at into the land in controversy as part of 
i consideratioii of same. Defendant F. S. 



Foote owned a homestead near Buffalo, in 
Harper county, Okl. This homestead was 
sold by the father for 11,600, and said money 
was deposited by F. S. Foote in his own 
name in the First National Bank of Nevada,^ 
Mo., and by him checked out in part pay- 
ment for the land in controversy. F. 8. 
Foote testified. In regard to said homestead 
and the proceeds thereof, as follows: 

"Q. He [George] didn't have a half Interest 
in your homestead in Oklahoma? A No, sir; 
he couldn't hold that, Q. That was all vnnrs? 
A Yes, sir. Q. And .vou toolt ^1,000 from the 
sale of the homestend and put it in this land? 
A. Yes, sir. He helped improve that land and 
work it, and was to have half of it when the 
time come." 

[3] We find from the evidence that defend- 
ant Oeorge Foote had no Interest in the 
Oklahoma homestead when it was sold by 
his father. The $1,600 realized by defendant 
F. 8. Foote for said homestead, having been 
brought to Vernon county and deposited in 
his own name, continued to be his individual 
property, and as such was used as part pay- 
ment of the purchase money of the land In 
controversy. The above conclusion is sup- 
ported by the previous ruling of this court. 
Dixon V. Dixon, 181 8. W. 84, et seq. Tlie 
testimony of defendants relating to the al- 
leged partnership In Oklahoma is far from 
satisfactory, as no details of same are re- 
lated. As it will not affect the conclusion 
reached by us, we will dispose of the case, 
however, on the theory, that defendants weie 
equal partners as to the $950 paid as part 
purchase money for the land in controversy. 
We accordingly And from the evidence that 
the purchase price of the land involved here- 
in, when paid in December, 1908, was $2,- 
550. Of this amount the sum of $2,075 was 
paid by F. S. Foote, and conceding $475 
(one-half of the $950) as having been paid 
by defendant George Foote, their interests in 
said land should be considered in the abo\t) 
proportion, when the father conveyed to this 
son the 80 acres of land described in peti- 
tion, on January 26, 1912. 

[4] II. Was defendant F. 8. Foote ren- 
dered insolvent by the conveyance of all his 
land and personal property to Ills son on 
January 26, 1912? 

"The term 'solvency,' in its application to cas- 
es like this, implies as well the prescut ability 
of the debtor to pay out of bis estate all his 
debts, as also sucn attitude of his property as 
that It may be reached and subjected by pro- 
cess of law, without his consent, to the pay- 
ment of such debts." li-ddy v. 13aldwin, 32 Mu. 
loc. cit. 374; Patten v. Casey et al., 57 Mo. US: 
State ex rel. v. Koontz, 83 Mo. loc. cit. 3."2 ; 
Walsh V. Ketchum, 84 Mo. 427; Jordan v. 
Buscbmeyer, 97 Mo. 94, 10 8. W. 616 ; Patton 
v. Bragg, 113 Mo. GOl, 20 S. W. 1059, 35 Am- 
St Hep. 730 ; Snyder v. Free, 114 Mo. loc. cit. 
369, 21 S. W. 847 : Mitchell v. Bradstreet Co., 
116 Mo. loc. dt 24a 22 S. W. 358, 20 U R. A. 
13S. 38 Am. St Rep. 592 ; Hoffman v. Nolte. 
127 Mo. loo. cit 137, 29 S. W. 1006; Scharff v. 
McOaugh. 205 Mo. loc. cit 364, 365, 103 S. W. 
560; ijemp Brewing Co. v. Correnti et wx., 
177 8. W. 612. 



r gitized Isy VjOOQ IC 

L ...' 



70 



187 SOUTHWBSTERN BEPORTBB 



IMOL 



It would be bard to conceive of a plainer 
caae of insolvency. The father conveyed to 
tbe son all of bis real estate and personal 
property within two months after tbe ma- 
turity of plaintiff's debt He only received 
1500 cash, in return from his son for all of 
said property, and that, too, was borrowed 
on tbe land be bad conveyed. The above 
sum was deposited in the pocket of tbe fa- 
ther, so that it could not be reached by bis 
creditor. When Jlidgment was entered upon 
plaintiff's note, which bad been executed be- 
fore the conveyance aforesaid, an execution 
was issued and returned unsatisfied, because 
no property could be found belonging to F. 
S. Poote. We therefore hold, without the 
slightest hesitation, that defendant F. S. 
Foote, was rendered insolvent, if the convey- 
ance aforesaid to bis son George is permitted 
to stand. 

[J] III. Defendant F. S. Foote conveyed to 
bis son the entire eighty acres in controversy 
and all of bis personal property. We have 
heretofore pointed out that the purchase 
money of the father which went into the 
above land was $2,075, while the sou's inter- 
est therein was $473. According to tbe testi- 
mony of defendants, the son was to cancel 
his alleged indebtedness of $200 against his 
father, was to borrow on the land $500 and 
turn that over to the latter, and was to keep 
his father the rest of his natural life, give 
him a home, pay bis doctor biUs, and ^ve 
him a decent burial. Deducting the above 
$700 from the value of the father's interest 
in tbe land as above indicated, it leaves 
$1,375 of tbe father's property in the hands 
of the son. 

The father was a single man during all 
tbe times mentioned, and no one is depend- 
ent upon him for support. The* property in 
his bands was not exempt from execution. 
The conveyance was invalid as to plaintiff, 
an existing creditor, regardless of the mo- 
tives which actuated tbe father and son in 
making siaid deal, as no provision was made 
for the payment of plaintitTs demand. Wal- 
ther V. Null, 233 Mo. 104, 134 S. W. 993; 
Bank of Versailles v. Guthrey, 127 Mo. 189, 
29 S. W. 1004, 48 Am. St. Rep. 621; Kegan 
V. Haslett, 128 Mo. App. 286, 107 S. W. 17; 
Massey v. McCoy, 79 Mo. App. 169; Wait on 
Fraudulent Conveyances, { 10. 

[6] IV. Even if the theory of defendants be 
adopted, to tbe effect that the son had a half 
interest in the land, and that his father's in- 
terest therein was only $1,275, it would still 
be of no benefit to defendants, as the son 
would still hold $575 of his father's property 
for future support, eta Under the authori- 
ties heretofore cited, the conveyance would 
be invalid by iteason of tbe foregoing. 

[7] V. In dealings between father and son, 
as between husband and wife, where the 
rights of creditors are involved, their acts 
should be closely scrutinized. Bank v. Fry, 
216 Mo. loc. dt. 45, 115 S. W. 439; Cole t. 
Cole, 231 Mo. 236, 132 S. W. 734; Ice & Cold 



Storage Co. t. Knhlmann, 238 Ma toe. ctL 
697, 698, 142 S. W. 258. On September 20. 1910, 
defendant F. S. Foote, when he executed tbe 
note mentioned in petition to plaintiff, was a 
single man, with no one dependent upon Itim 
for support, and with none of bis property 
exempt from execution. He was the record 
owner of the land In controversy, together 
with some personal property, and so far as 
the evidence discloses was not Indebted to 
any one, except possibly to his son, until he 
executed said note to plaintiff. The latter's 
debt became due December 1, 1911, and. de- 
mand of payment was made by tlie bonk npon 
the father. In less than two months there- 
after the father conveyed all of his land and 
all of his property to bis son. We are not in- 
formed as to the particolan which made np 
the alleged Indebtedness fnxn the father to 
the son of the $200 token Into account as 
part of said deaL According to tbe theory 
of defoidante, the fhtber oonveyed to the son 
his interest In land worth $2,075, together 
with his interest In tlie personal property up- 
on said fa[rm, for tbe alleged omsldK'atlon 
heretofore mentioned. 

It is manifest to us from tbe record that 
F. 8. Foote, when called upon to pay this 
security debt to plalntilff, made up bis mind 
not to do BO, and before jndgmemt could be 
obteined by plaintiff CMicluded to put bis 
inroperty beyond the readi of his creditor, 
by turning it over to his son, with whom be 
expected to reside on this land, after bis re- 
turn from the East George Foote testified 
in respect to plaintiff's note as follows: 

"Q. Did you know Mr. Van Arsdale? A. 
Tes, sir. Q. Did you know your father had 
gone on this note with Mr. Van Arsdale? A. 
No, sir; I beard of it; I didn't know it. Q. 
Who told you about it? A. Well, I heard fa- 
ther and him talking abont it. Q. Your father 
and Van Arsdale talked about him going on 
this note with Van Arsdale? A. Yes, sir." 

George Foote further testified: 

"Q. At the time this deed was made to yon, 
do you know whether the note was doe? A. 
No, sir. Q. You don't know anything about 
it? A. No, sir. Q. But you knew your father 
had signed this note? A. Yes, sir; that was 
bearsay. Q. Did yon and your father talk this 
over? A. He wanted to sell, and I told him 
what I was willing to do with him." 

[1-10] We are satisfied from the record be- 
fore us that defendant F. S. Foote executed 
and delivered the quitclaim deed to the land 
in controversy to bis son George for the pur- 
pose and with tbe intent of hindering and de~ 
laying plaintiff in the collection of his debt, 
and with tbe purpose and Intent of placing 
all of his property beyond the reach of plain- 
tiff as his creditor. We are equally as well 
satisfied, from the facts disclosed in the rec- 
ord, that defendant George Foote knew his 
father owed the plaintiff this security debt 
and was desirous of placing his real and per- 
sonal property where it could not be seized 
to satisfy plaintiff's demand. When all the 
facte and dealings between ftither and bob 



are considered, we cannot escape tbe ood- 



O 



le 



Ua) 



WBB IKVIiSTMENT CO. ▼. J0NI8 



^1 



Tlction that Oeorg« attempted to aid Ms fa- 
ther in placing the land In controversy be- 
yond the reach of plaintiff, and accepted the 
quitclaim deed aforesaid for that purpose. 
He acquired his father's interest in said land, 
worth $2,075, for $700 and future support of 
Us father. The fictitious consideration of 
$3,500 waa placed in the deed, when George 
sa^rs it was worth $2,560. The most Impor- 
tant part of the whole agreement between the 
father and son, relating to the father's fu- 
ture support, was omitted from the deed. 

On the record as it now stands, the de- 
fendants bare accomplished their purpose. 
They are living together oa the farm, and 
the land is still in the family. The plahittff 
did not levy upon and buy In said land, as he 
could have done, but is pursuing the course, 
commended by this court, of having the land 
in the hands of the son subjected to the pay- 
mmt of bis demand. Ice & Cold Storage Ca 
T. Kuhlmann, 238 Mo. loa cit. 704, 142 S. W. 
2S3; Welch v. Mann, 103 Mo. loc dt. 826, 02 
S. W. 98; Uonberger v. Baker, 88 Mo. loc. 
dt 456. Considering the case from any 
viewpoint, the conveyance from father to son 
was a frand upon the rights of plaintiff as 
an existing creditor, and cannot be sustained. 

As there is no attack made upon the $500 
incumbrance, the cause Is reversed and re- 
manded, with directions to the trial court 
to ascertain the amount of principal and in- 
terest due plaintiff on the Judgment described 
in petition, to ascertain the amount of unpaid 
costs in both cases, and to enter a decree 
therefor in. this cause, as a special lien on 
the land aforesaid, subject to said $500 in- 
combrance, and to issue a special execution 
enforcing said decree. 

BROWN, CI, concors. 

FEB CURIAM. The foregoing opinion of 
BAILEjT, C, is adopted as the opinion of the 
court. All concur. 



ELKS INYBSTMENT CO. v. JONES et al. 

(No. 17870.) 

(Supreme Court of Missouri, Division No. 1. 

June 2, 1916.) 

1. (ToTTBTB $=>231(6) — Appkixate Jtjbisdio- 

TIOW — MiSSOUBI — CONSTITtJTIONAL QUES- 

noiTS. 

The inrisdiction of the Supreme Court to re- 
view a cause because a constitutional question 
is involved does not depend upon the validity of 
the claim of constitutional right set up therein; 
it bting suffident if there is substantial dispute. 
(Ed. Note. — For other cases, see Courts, Cent. 
Dig. U M6, 668: Dec. Dig. «=>231(6).] 

2. OoKMOiT liAW 4tE»12 — Adoption — State 
OonerriTDTioir. 

When Missouri came into the Union under 
its first Constitution, it brought with it the 
common law which it bad adopted as a territory 
m 1810. 

[Ed. Notfc— For other cases, see Common Law, 
Genu Dig. i 10; Dec Dig. «=»12.] 



8. Jttbt ®=»10— Right to Jttbt Tbiai^-Con- 

STITUTIONAI- PBOVISIOITB. 

The right to jury trial protected by Const. 
1820, art. 12, i 8, remains now as it was estab- 
lished and guaronteed in 1820. 

[Ed. Note.— For other cases, see Jury, Cent. 
Dig. a 15, 16. 27% ; Dec Dig. «=alO.] 

4. JuBY $=»10— Right to Jubt TriaI/— Oon- 
BTrruTioifAL Pbovibions— Changs in Pbo- 
cedubb. 
No le^slative chan^ in procedure can im- 
pair the right to jury trial guaranteed by Const. 
1820, art. 12, { 8. 

[Bd. Note. — For other cases, see Jury, Cent. 
Dig. §{ 15, 16, 27% ; Dec. Dig. «=>10.] 

6. Re?ebence ^=»8(1)— GoNixrsED oB Oompubt 

Accounts. 
Where a case arises where the accounts are 
so numerous and confused that it would be im- 
possible for a jury to comprehend and intelli- 
gently decide it unless the issues are simplified 
by preliminary investigation, it is within the 
power of the trial court to direct a preliminary 
investigation and direct a suitable person as 
oflicer of the court to call the parties before him, 
as a tentative tribunal, to simplify the items and 
issues in order that the case may be inteUigently 
presented to the jury. 

[Ed. Note. — For other cases, see Reference, 
Cent. Dig. {{ 18, 14, 20; Dec. Dig. «S=»8(1).] 

6. Reference <e=58(3)— Examination of Ac- 
counts — Burr ON Building Oontbacts — 
"Long Account." 
The pleadings in an action upon building 
contractor's bond, although the petition stated a 
number of breaches of contract and defendant 
sureties answered alleging a number of unau- 
thorized changes in the contract, and the princi- 
pal defendants counterclaimed, alleging various 
items of damage, held not to show a long ac- 
count" within Rev. St. 1909^ ( 1996, authoriring 
compulsory reference for the examination of a 
"long account," since the questions involved 
were merely legal ones, Involving liabihty for un- 
Uquidated damages for breach of on entire con- 
tract, expressing only an entire consideration. 

[Ed. Note. — For other cases, see Reference, 
Cent. Dig. §{ 16, 17; Dec. Dig. >8!=>S(3). 

For other definitions, see Words and Phrases, 
First and Second Series, Long Account.] 

Appeal from Circuit Court, Barry Coun- 
ty; Carr McNatt, Judge. 

Action by the Elks Investment Company 
against L. B. Jones and others. From .a 
Judgment for plaintiff, defendants appeal. 
Reversed and remanded. 

This is a suit by the owner upon a bond 
to secure the performance of a contract dated 
August 11, 1909, for the construction of a 
clubhouse for the plaintiff. The defendants 
are L. B. Jones and W. A. Bridges, the con- 
tractors and principals In the bond, and J. 
U. Vermillion, Leroy Jeffries, and W. O. 
Hathaway, their sureties in the bond. The 
petition was filed February 13, 1911, and 
states the execution of the contract to cou- 
structl the clubhouse In Monett, Mo., fur- 
nishing at their own cost and expense the 
material therefor and doing all the work re- 
quired by the plans and specifications, and 
to complete the building in accordance there- 
with by the 11th of December, 1909; tf the 
completion was unreasonably delayed the 
damages therefor were to be deducted from 



C=>7or otliar wim sm nam* topic and KET-MU1IBB& in all Ker-Mumbered Digests sad todezes " 



n5y 



Google 



72 



187 SOUTHWESTERN BEPOBTUB 



(MO. 



the contract prl?e, which was fixed at $9,300. 
That the bond sued on, which was attached 
to the contract and signed by all the defend- 
ants as such principals and sureties, was 
for $4,630, and "conditioned that In the event 
that said L. B. Jones and W. A. Bridges 
should well and truly performl said fore- 
going contract and should build and erect 
said clubhouse in every particular accord- 
ing to said contract and plans and specifica- 
tions and should hold plaintiff. Elks Invest 
ment Company, harmless from all damages, 
actions, or causes of actions by reason of 
any and all materialmen or mechanic's liens, 
then said obligations should be void"; that 
plaintiff had fully complied with the contract 
on his part, but that the contractor had fail- 
ed, neglected, and refused to complete the 
building according to the plans and specifica- 
tions by the 11th day of December, 1909, and 
that plaintiff had been deprived of its use 

and occupancy up to day of February, 

1911, to plaintiff's damage in the sum of 
$1,000. 

It also alleged' as a breach of the bond: 
That the defendants had failed to hold the 
plaintiff harmless from liens for material 
and labor on account of which Judgments 
had been obtained against the building as 
follows: 

"M. Ii. Coleman Lumber Company, material- 
man for Inmber in the Biim of $3,872.22: Davis 
tc Chappell Hardware Co., for material in the 
sum of $253.95; George W. Baldridge, for ma- 
terial and labor in the sum of $926 ; C. L. Wil- 
liams, for material and labor in the sum of 
$719.24; Fred Reinsmith, for labor and material 
in the sum of 264.52: J. H. Otterman. for ma- 
terial in the sum of $133.90: D. J. Randolph, 
for labor in the sum of $173.85 ; W. H. Floreth, 
for material in the sum of $45.90. That the 
above-rrentioned judgments were by said court 
adjudged against said building and premises of 
plaintiff as will more fully appear by the records 
of said court, to plaintiff's damage in the total 
sum of $6,3^.64.*' 

That plaintiff was compelled to pay at- 
torneys' fees in said suits amounting to $50, 
all of which plaintiff had been forced to and 
did pay to save the building from sale. 

The petition proceeded as follows: 

"Plaintiff states that for another breach of 
said bond the said defendants L. B. Jones and 
W. A. Bridscs have failed, neglected, and re- 
fused to complete said building according to 
Bttid contract and plans and specificntions in 
this, to wit: To fix and clean and oil the hearth 
of the mantel on the first floor; place and fit 
floor plntrs around the risers and fit and place 
floor moulds to the plates; repaint plastering in 
basement; give smoke pipe a coat of graphite, 
or black paint; close up bottom of flue to toilet 
room ; replace broken stair window on the first 
landing to second floor, and nail fourth tread 
from said landing; level up upper landing to 
nosing; decorate auditorium so that it would be 
of same color, and to clean off the floor and finish 
dressing and sand paper same ; paint galvanized 
ridgintr. provide sash lock for balconies, and box 
head windows: fix floor where hole has been cut 
in same for risers in auditorium nnder radiator; 
to place transom on second story where it was 
dropped; repair porch where chimney passes 
through roof ; make ladder to scuttle on sec- 
ond floor; and to furnish plaintiff with written 



guaranty, of heating apparatns— all to plaintiff's 
further damage in the sum of $200. 

"Plaintiff further states that it has paid to the 
defendants on said contract price as aforesaid 
the sum of $5,483, and that after allowing said 
defendants Jones tc Bridges for all work and 
labor performed on said building, plaintiff would 
be indebted to said defend.ants, had the building 
been all completed according to said contract, 
the sum of $3,975.50, which said amount has 
been by plaintiff fully paid out by it to the above- 
named materialmen and mechanics pro rata, to- 
gether with the additional sum of $2,415.15, 
which plaintiffs were forced to pay in settlement 
of the total sum of $6,389.64 aforesaid, the es- 
tablished liens against said property, in order to 
prevent said materialmen and mechanics afi re- 
said from selling said property aforesaid under 
execution judgments aforesaid." 

Judgment was asked for the penalty and 
damages to be assessed at $3,665.14. 

Jones & Bridges answered separately that 
the contract provided that the plaintiff 
should pay 75 per cent, of the cost of all 
labor and material In the building as the 
work progressed upon estimates to be fur- 
nished by the superintendent of the build- 
ing, which payments it failed and refused to 
make; that it also provided that defendants 
should complete the building by December 
11, 1909, unless prevented by conditions and 
circumstances over which the parties had no 
control; that the knaterial ordered could 
not be obtained ; that plaintiff failed to clear 
the lot on which the building was to be erect- 
ed for some months after the date of the con- 
tract by which the contractors were without 
their fault and by fault of plaintiff prevented 
from constructing and completing the said 
building until February, 1911; and that 
plaintiff is not entitled to recover on account 
of the mechanics' liens for the reason that 
said liens were caused by the failure of 
plaintiff to pay for the labor and material in 
the course of construction of said building 
as provided in the contract. 

The sureties filed an amended answer 
charging that the contract provided that the 
plaintiff should not make any alteration or 
changes In the plans and specifications ex- 
cept In manner and form stated in the an- 
swer, and that plaintiff should pay 75 per 
cent of the cost of labor and material based 
on estimates made by the superintendent, 
and proceeded as follows: 

"Defendants say that plaintiff, in violaticn of 
its said contract, made various changes, altera- 
tions, and departures from the plans and specid- 
cations for the erection of said building with- 
out the knowledge or consent of these defend- 
ants, as follows : The foundation of said build- 
ing was raised 18 inches above ^rade line, caus- 
ing the use of about GOO cubic feet of stone 
more than was required by the original con- 
tract, and added 90 square feet of lattice 
work ; two concrete steps at front entrance of 
building, l2 feet long, and two wooden stepm 
at south entrance of building, 6 feet long, 
all of said steps being 12 inches wide ; about 
300 square yards of walls of basement of said 
building^ were white-coated and three 2x12x28 
double joints were placed over partitions; 172 
feet of lumber was put in as truss work in 
wall under plate and over partitions and slid- . 
ing doors, and a wooden beam and iron ring ,- 1 r> 
were placed over attic scuttle; an extra aJlaba»'^ I v. 



Mo.) 



BOiKS INVXSTMEKrr 00. t. JONSS 



78 



tine coat was placed on inner trails and eeiUnv 
o:' entire story of said building; 90 square 
feet of painting on lattice work two coats; 
eirra sT»'itch box and switch behind the rolling 
[irtitions, and resetting of partitions on the 
sc^th side of stage which required material al- 
tirationa in original rolling partition and caus- 
ed contractors to have to send to factory and 
lave rolling partitions shortened ; changing 
tewer pit>e after same had been laid and cov- 
ered as provided in original plans by having it 
takeo up. lowered, and extended 20 feet north 
under ba&ding, and on to a manhole; plncing 
two iron beams and rings in ceiling of lodge 
room, removing and resetting one of said rings 
izd beams to another point in said ceiling; 
changing pine flooring in said lodge room to clear 
ma.ile, aboat 3,000 feet, scraping and sand 
papermg same ; two extra switches in the 
niring of said building; painting of the interior 
■src.idworlt throughout the entire building, chang- 
ed from a stain to hard oil finish. 

"Orfendants state that after the execution 
cf said bond and contract, plaintiff and said 
contractors, Jones ft Bridges, by their certain 
in^niment in writing, agreed to and did adopt 
the following changes in the plans of erecting 
Eaid building, to wit: Area coping changed 
from Carthage stone to cement; I-beams in 
Islliaid room to he left exposed, omitting the 
vire, lath, and plastering on same; the gas 
pipe columns in basement changed to 8 by 8 
surfaced ; the fire escape changed to ladder 
£re escape in place of stairs, as shown on draw- 
inn; the outside finish changed from white 
pine to Liouisiana cypress; omit' lining of 
sli'ling door pockets; all sash to lie 1% inches 
thick, insteaa of 1% as specified : omit dipping 
and staining of sningles; the interior of ex- 
terior walla of basement to have the furring 
and lath and plaster omitted and given a half 
nat of Portland cement, the same as specified 
for the top of cement floor— this to extend from 
iooi to ceiling and where plastering is speci- 
sed only. 

"That said dtanges and alterations in the 
plans of said building, last mentioned, were 
c:.ierial variations from the original contract 
price of said building, and plaintiff and said 
contractor did not agree in writing npon the 
snwnnt of increase or deduction from the orig- 
inal contract ^rice that said changes would 
cau!>e, as provided in said contract that by 
rea<<on of all of said changes and alterations 
as herein rtated, the cost of said building was 
increased in the sum of $1,400 above the 
rriKinal contract price ; that ijlaintiff gave 
Bid contractors an extension of time in which 
to complete s^d building, on a verbal order 
only, in direct Tiolation of the rights of these 
f^efendants under said contract; that plaintiff 
did not pay 7fi per cent, of the lal>or and 
material placed in said building aa the work 
progreaseo, based (Xi estimates made by the 
Riperintendent of the building, as provided in 
said contract. 

"Defendants say that the alterations, changes, 
and departures by plaintiff from the contract, 
plans, and specificatioBS herein mentioned were 
naterial alterations in the contract into which 
these defendants entered with plaintiff; that 
taid dianges were made by plaintiff withoirt 
the knowledgs or ooascmt of these defendants, 
and in violation of the rights of defendants 
under said contract; that by reason of the 
changes, alterations, and departures made by 
plaintifr, in the plans of said bnilding as afore- 
said, these def^dants aw released and dis- 
charged from any and aU liability on the bond 
and contract sued on." 

To these answers plaintiff replied. 

When Oxe pleadings were all settled the 
plaintiff moved to refer the cause upon the 
poDDd: 

That the amount In controrersT will ncccs- 
litats the computing of several different and 



difficult items, and the ettmlnation of a long 
account and the .study of a large and compli- 
cated volume of specifications, coverlne the 
entire contract entered into by the plaintiff and 
the defendant for the construction of the large, 
two-story, commodious building ; also the eir 
amination and study of large and extensive 
blueprint plans, which is made a part of the 
contract between the parties hereto; which 
examinations of said specifications, plans, and 
items of construction and expenditures, etc., 
will take some time to investigate, and by 
reasons of the complications aforesaid, n jury 
would be nnaUe to retain all the complicated 
matters, and render a verdict thereon tliat 
would be fair and just to the litigants herein 
as well as to the jurymen, who might try the 
said cause." 

This motion was sustnlned, and the court 
appointed Mr. John Sturgls, referee, to all 
of which the defendants excepted and filed 
their bill of exceptions. They then filed their 
motion to set aside the order of referee on 
the following grounds: 

"First. Because the subject-matter of this 
suit, under the issues made by the pleadings, is 
not a matter of reference aa provided by stat- 
ute. 

"Second. The order of the court sustaining 
said motion to appoint a referee deprives de- 
fendants of their right of trial by jury, as 
guaranteed them under article 2, section 28, 
of the Constitution of the state of Missouri. 

"Third. Because the action of the court in 
sustaining said motion to appoint a referee 
herein deprives these defendants of due process 
of law as provided in section 32, article 2, of 
the Constitntion of the state of Missouri, in 
that it might deprive these defendants of their 
property without having their rights therein 
determined according to the methods allowed 
them under due course of law. 

"Fourth. Because the court erred, as under 
the statute, it has not authority to appoint u 
referee, as this action is simply a suit on a 
building contractor's bond. 

"Fifth. Because the issues joined by the 
pleadings show on their face that it is not a 
proper cause to send to a referee as provided 
by statute law in this state." 

This motion was overruled by the court, 
and defendants duly excepted, includhig said 
exceptions in their term bill. 

Thereupon the referee proceeded to hear 
the cause upon all the issues of law and fact 
and made his report recommending Judgment 
on the bond against the defendants and the 
assessment of the damages In the sum of 
$2,750.53. Exceptions were duly filed to the 
report, which was overruled by the court, 
to which the defendants duly excepted, and 
the court entered judgment for said amount 
against all the defendants, from which this 
appeal is taken. 

J. S. Davis, of Cassvllle, and J. £3. Sater, 
of Monett, for appeUanta D. H. Kemp, of 
Monett, and I. V. McPheison, of Aurora, for 
respondent 

BROWX, C. (after stating the facts as 
above). [1] 1. The amount involved in the 
Issues In this case, upon any theory applica- 
ble to the construction of the pleadings, be- 
ing less than that necessary to sustain the 
Jurisdiction of this court. It must stand, if at 
all, upon the ground that we are called upon 
to coustme the proTi&koa of the state Con> 



oy 



Google 



74 



187 SOUTHWESTERN BBPOETBE 



(Mo. 



stitnUon (section 28; art 2) declaring that 
"the right of trial by Jury, as heretofore en- 
Joyed, shall remain Inviolate." A trial by 
Jury was demanded on constitutional 
grounds, and the demand was pressed 
throughout the case. Although we are called 
upon to consider, in the light of the consti- 
tutional guaranty we have quoted, whether 
section 1996 of the Revised Statutes of liX)9, 
authorizing tne trial court to refer the 
cause for the trial of the whole issue, the 
constitutional question raised in the record 
goes deeper than the mere construction of 
this section of the statute. The appellant, 
at the trial, asked upon constitutional 
grounds that he be given a Jury, which the 
court refused. The question was thus put in 
the case. The statute authorizing compul- 
sory references "to hear and decide the 
whole issue" had no more connection with It 
than if the court had put its denial upon the 
broad ground that the issue was in equity, 
and therefore one in which the right of trial 
by Jury bad never existed. It was only after 
h(4ding that the Oonstltution did not guar- 
anty to the appellant the right of trial by 
Jury of any of the issues in that particular 
case that it was called upon to Inquire 
whether this statute authorized him to refer 
it 

The Jurisdiction does not depend upon the 
validity of the claim set up under the Con- 
stitution. It is enough if it Involves a clear 
and substantial dispute or controversy. Our 
determination of its validity ia the exercise 
of our jurisdiction. Dorrance v. Dorrance, 
242 Mo. 625, loc. dt 644 et seq., 148 S. W. W. 
We have no doubt of our Jurisdiction. 

[2-4] 2. When Missouri came into the Un- 
ion of the states under its first Constitution, 
it brought with it the common law which 
it had adopted as a territory in 1816. The 
schedule provided (section 2) that all laws 
then in force in the territory of Missouri 
not repugnant to that Constitution should 
remain In force until they should expire by 
their ovra limitations, or be altered or re- 
pealed by the General Assembly. It is thus 
that the foundation was laid upon which sec- 
tion 8 of article 12 was built, and incorporat- 
ed in its Bill of Rights. It declared "that 
the right of trial by Jury shall remain In- 
violate." The word "remain" Is significant 
of the common-law foundation upon which 
this declaration rested, and the same con- 
stitutional guaranty has existed during every 
instant of the existence of the state up to the 
present day, so that there has been no op- 
portunity to give it new meaning, by legis- 
lative action, as to the character of the cases 
to which it applies. It remains now as it 
was established and guaranteed in 1820. 
There is no other point of time on which we 
can pot our finger as the beginning of this 
right No legislative change in procedure 
can Impair it. It still means that all the sub- 
stantial incidents and consequences that per- 
tained to the right oif trial by Jury att be- 



yond the reach ol hostile legislation, and 
are preserved as they existed at common law. 
State ex rel. v. Wlthrow, 133 Mo. 600, 519, 
34 S. W. 246, 36 S. W. 43; Lee v. Conran. 
213 Mo. 404, HI S. W. 1161; Minium v. 
Solel, 183 8. W. 1037, not yet officially pub- 
lished. 

[5] At the time the state was admitted, 
and up to 1836, there was no statute author- 
izing the compulsory reference of any issue 
in actions at law. Sometimes, however, a 
case arises "where the accounts are so nu- 
merous and confused that it would be impos- 
sible for a Jury to comprehend and intelli- 
gently decide it, by reason of the complexity 
and diversity of the issues and items, unless 
they are simplified by a preliminary investi- 
gation." Under such conditions it is with- 
in the power of the trial court "to direct a 
preliminary investigation In a proper case, 
and to designate a suitable person as an of- 
ficer of the court to call the parties before 
him, as a tentative tribunal, to simplify the 
items and the issues in order that the case 
may be intelligently presented to a Jury." 
Fenno v. Primrose, 119 Fed. 801, 803, 56 C. 
C. A. 313. The person so appointed by tlie 
court was usually called an auditor and so 
far from his office being Intended to usarp 
the constitutional function of the Jury It was 
to aid them by simplifying the process by 
which they were to arrive at the questions of 
fact for their determination. The utility of 
employing an accountant for the examina- 
tion of books and vouchers and the stating 
<>f accounts was appreciated and the method 
adopted as a part of the common-law pro- 
cedure, and in most Jurisdictions, as in Mis- 
souri, its limits have been defined by stat- 
utes. Whltwell et al. v. Wlllard, 1 Mete. 
216, affords an excellent Illustration of Ju- 
dicial interpretation of one of these statutes 
somewhat similar to our own. There was a 
reference by the trial court under a statute 
of Massachusetts providing: 

"That whenever a cause is at issue, and it 
shell appear that the trial will require an 
investigation of accounts, or an examination of 
vouchers by the jury, the court may appoint 
one or more auditors to hear the parties, and 
examine their vouchers and evidence, and state 
the accounts, and make report thereof to the 
court" 

The suit was brought against a sheriff foi 
the alleged nonfeasance of one of his depu- 
ties, alleging that a process had been put in 
his hands with directions to attach all the 
property of one Brigham, consisting of tar- 
niture and supplies in a hotel. They alleged 
that on account ot his negligence and im- 
proper conduct of the sale and failure tc 
atta(^ numerous items of wines, liquors, 
stores, fvurniture, and other personal proiK 
erty in the hotel, a large amount had beei 
lost The plaintiff objected to the appoint 
ment of auditors under the statute quoted 
and appealed on that ground to the Supreme . 
Judicial Court, which, in holding that tlu > I p 
reference was Improperly made, said: "" (^ 



ifa) 



BLKS INVESTMENT CO. v. JONEfl 



76 



"The ptalntiffs wek to maintain this action 
mainly for th« negligence of the deputy, in 
act attaching a great number of articles Of 
furniture, proviBiona, wines, and the like, being 
the famitnr* and stock of a large hotel. These 
irticles are ao nomeroos that a liat of them 
would perhaps fill several sheets of paper, and- 
in this respect such a specificatiou would bear 
tome reaeinblance to an account; but it would 
be so in its api>earance only, and not in its 
nature or character, taking the term 'account' 
as used in this statute. The question before the 
JD17 mnst be, in determining whether the dep- 
uty waa guilty of the nonfeasance and tort 
complained of in regard to each separate item : 
Was it in that house at the time? Was it the 
property of Brigham, or of some lodger or 
fmest, or other person? Was it known to the 
depat7, or could it be discoTered by reason- 
able inquiry and diligent search, or was it 
dtown to him by the plaintiffs or their agent; 
what was its value? etc. It involves no ques- 
tion of debtor and creditor, no examination of 
bo(A aceoants or other vouchers, no relation 
in which one party is accountant to the other, 
or in whicb any question of accounts can 
oome collaterally in issue. It charges a series 
of torts, each of which is to be tried and prov- 
ed, upon competent evidence, in the same man- 
ner as if it stood alone; and it does not alter 
the character of the trial, or the mode of con- 
ducting it, or the nature of the i^oof by which 
the issue is to be maintained on either side, 
that it involves a great number of torts, enu- 
merated and stated upon paper, instead of a 
single instance." 

[I] The only provision of our section 1996 
upon which tiie respondent seeks, or could 
Intelllgiently seek, to sustain this reference, 
is as follows : 

"^rst, where the trial of an issue of fact 
shall require the examination of a long ac- 
count on either side, in which case the referees 
may be directed by the court to hear and de- 
cide the whole issue, or to report upon any 
specific question of fact involved therein." 

Tbia iHTOvislon and that of the Massachu- 
setts statute we have }uat quoted have the 
feature )n common that they apply to the ex- 
amination of accounts, but differ In the re- 
spect that ours only applies to "long" ac- 
oimnts. While the word "account" may have 
a variety of meanings and may represent 
any liability consisting of a series of charges, 
or diarges or credits, gprowlng out of mutual 
business transactions between the parties, as 
a bank account or an account for goods sold, 
it has not been held, so far as our information 
extends, to Include a liability for unliqui- 
dated damages resulting from the breach of 
an entire contract, expressing only an entire 
consideration. 

We have here a suit for such damages 
arising from the breach of such a contract 
The petition contains a list of 11 particulars, 
In wbldi It alleges there was a f&Uure on the 
part of the contractor to i)erform the work 
and famish the material called for, fixing the 
damages in the gross sum of $200. The only 
other tneacfa consists of the failure of the 
contractors to discharge 8 liens against the 
btdlding amounting to $6,389.64, where were 
matters of record In the circuit court in 
vhidi this stdt was pending, and about which 
there was no controversy. Nor was there any 
emtroreny over the gross amount which had 
been paid to ttm eKDtractor. So tu tia the 



petition disclosed, there was no account to 
be examined. On the other hand It raises 11 
distinct questions of fact to be tried by the 
Jury relating to 11 distinct alleged deficiencies 
In the work going to make up the gross sum 
claimed. The answer of the three sureties 
Is equally devoid of any feature pertainlug 
to an accounting and Is equally pregnant 
with Issues peculiarly within the province of 
a Jury. It Is founded solely upon the charge 
that various changes and additions were 
made to the building In question In violation 
of the terms of the contract and without the 
consent of the sureties, by all of which the 
cost of the building was Increased in the 
sum of $1,400, by which the Identity of the 
contract was destroyed and defendant sure- 
ties discharged from liability upon the bond. 
Ko value Is fixed upon these several changes, 
nor is their value of the gist of the defense, 
but each of them Involved a question or ques- 
tions for the consideration of a Jury, which 
the defendant sureties had the right to have 
submitted to a Jury for determination. 

The defendant contractors in their answer 
pleaded by way of counterclaim that the 
plaintiff had ordered and they had dcme extra 
work consisting of the raising of the foun- 
dation 18 Inches at a cost of $400, and had 
done numerous other Items of extra work at 
plaintiff's Instance which were lumped with- 
out itemizing their value at $1,000, and ask 
Judgment for $1,400. They also pleaded that 
the damages claimed by plaintiff resulted 
from Its failure to make the payments for 
labor and material according to the terms of 
the contract and Its delay in wrecking and 
moving the old buildings from the site in time 
to permit the work to proceed as contem- 
plated In the contract 

We do not think that there was anything 
in these pleadings or in any of them that sug- 
gested the existence of a long account or any 
other account for examination In connection 
with the trial of the Issues. 

This cause comes w^ within the matters 
at issue In the late case of Reed v. Young, 248 
Mo. 606, 164 S. W. 766, Where the cause was 
referred on the ground that a counterclaim In 
an action by an architect for services render^ 
ed the owner In planning add superintending 
the construction of a building, consisted of 28 
Items of damage due to plaintiff's Incompe- 
tence, negligence, unsklllfulness, and frand in 
his work, each separately stated In the an- 
swer and separately Itemized as to damage, 
and amotmtlng to the gross sum of $10,535.61, 
was a long account within the meaning of 
section 1996. 

in reversing the cause this court, after citr 
Ing numerous authorities, said : 

"The terms 'estunining a long accounf are 
used by the statute in the sense in which they 
are ordinarily understood, and do not imply 
either an account stated or a bill of particu- 
lars, but refer to a series of charges made at 
various times covering transactions between the 
parties, or to an account kept 
or the other, for which redress 



actions between the ^^-^» t 

lr(»a nSghrbe^'haSy VjOOQlC 



76 



187 SOUTHWBSTBaN BBPOBTBB 



(Ma 



in actions ex contractu. Tbe statute did not | after the petition was filed was stricken out so 
intend that actions sounding in tort, wliich far as it related to loss of time after filing of 
juries are peculiarly adapted to tr7 (R. S. the petition, an instruction for plaintiff thnt. 



1909, S 1968), should be sent to a referee 
against the consent of the litigailts. Such was 
not its construction prior to the adoption of 
the present Constitution (Martin v. Hall, 26 
Mo. loc. cit. 389), and to give it that con- 
struction now would violate the constitutional 
guaranty^ that the right of trial by jury should 
remain inviolate as heretofore enjoyed. Con- 
stitution, article 2, § 28." 

The judgment in this case Is reversed, and 
the couse remanded to the circuit court for 
Barry county for further proceedings. 

RAILET, C, concurs. 

PER CURIAM. The foregoing opinion of 
BROWN, C, is adopted as the opinion of the 
Court. All concur. 



SHIMMIN V. a & S. MINING CO. 

(No. 1729.) 

(Springfield Court of Appeals. Missouri. June 

17, 1916.) 

1. Mastbb and Sebvant <3=>286(19)— Action 

FOB INJTJBT — QtTKSTION FOB JUBY — SAFB 

Plage to Work. 
In an action for injury from an accumula- 
tion of ice falling from near the top of a mine 
shaft, held on the evidence that whether it was 
negligent for defendant to defer removing the ap- 
parently dangerous ice, when the only excuse 
shown was that to stop long enough to do that 
would delay other woric for a short time, was for 
the jury. 

[Ed. Note. — ^For other cases, see Master and 
Servant, Cent. Dig. { 1026; Dec. Dig. «=> 
286(19).] 

2. Mastkb and Sebvant 9=3258(17) — Action 
FOB iNjnBY — Petition — Knowuidoe or 
Danqebous Condition. 

In a servant's action for injury, defendant's 
actual or constructive knowledge of the defect 
should be alleged and shovtm to have existed for 
a sufficient length of time to permit a removal in 
the use of reasonable care and diligence. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent. Dig. | 832; Dec. Dig. «=» 
258(17).] 

3. PiEADiNo 9=»433(8)— Petition— S uFFi c iE N- 
OT after Vebdict. 

Under Rev. St. 1909, { 2119, providing that 
a verdict shall not be in any wa][ affected by rea- 
son of the want of any allegation or averment 
the omission of which would have been ground 
for demurrer, or for omitting any allegation 
without proof of which the triers of the issue 
ought not to have given the verdict, the failure 
of the petition in a servant's action for injury 
to allege that defendant knew of the dangerous 
condition for a sufficient length of time before 
the accident to have removed it by the exercise 
of ordinary care, in the absence of a demurrer, 
and in view of the evidence as to such knowledge 
and the instruction thereon, was sufficient after 
verdict. 

[Kd. Note. — For other cases, see Pleading, 
Cent. Dig. S! 1462, 1469-1471, 1473, 1476 ; Dec. 
Dig. <8=>433(8) ; Replevin, Cent Dig. § 209.] 

4. Dakaoes e=>210(8)— Lobs of TncE— Evi- 
dence— Inbtbdction. 

In a servant's action for injury, where the 
petition alleged that plaintiff had lost much 
time by reason of the injury, and where the 
pvhlcnce showing an actual loss of time partly 



in determining the damages, the jury should ' 
consider the loss of time, if any, without restric- 
tion to the time lost before the suit was filed, 
was not erroneons, since no evidence as to tbe 
loss of time was before the jury, except that oc- 
curring before the suit was filed. 

[Ed. Note. — For other cases, see Damages, 
Cent. Dig. { 658; Dec. Dig. <S=3216(8).] 

5. TbiAL «=3255(6)— INSTBOCXIONB— RjBQtJEST- 
ED INBTBUCTIONS. 

In such case, the defendant, if not satisfied 
with the restriction placed on the evidence, 
should have asked the court to repeat the same 
in the form of a written instruction. 

[Ed. Note. — ^For other cases, see Trial, Cent 
Dig. i 638 ; Dec. Dig. «=»255(5).] 

6. Dauaoes ®=>1S9(^— Fuudino — FtrrcBi 

Loss OF EABNINOa. 

An allegation of injury and that it had im- 
paired tbe plaintiff's earning capacity and caused 
a loss of his time, and that such injury and con- 
ditions were permanent, was a sufficient alle- 
gation of future loss of earnings, to let in evi- 
dence of such future diminished earning capacity 
or loss of time. 

[Ed. Note.— For other eases, see Damages, 
Cent Dig. I 443 ; Dec. Dig. <8=»159(3).] 

7. Damaoes <g=3 132(1)— Excessive Daicaqb»- 
Pebsonai, Injury. 

A verdict of $2,500 awarded to a mine em- 
ployS who had two ribs broken, and received 
other severe injuries which were permanent and 
impaired his ability to follow his usual occu- 
pation, was not so excessive as to imply that it 
was the result of passion and prejudice. 

[Ed. Note.— For other cases, see Damages, 
Cent Dig. I 372; Dec. Dig. «=.132(1).] 

Appeal from Circuit Court, Jasper Count; : 
J. D. Perkins, Judge. 

Action by John Shlmmln against the C. & 
S. Mining Company. Judgment for plaintiff, 
and defendant appeals. Affirmed. 

R. M. Sheppard, of Jopiln, and J. P. Mc- 
Cammon, of St. Louis, for appellant. Owen 
& Davis, of Jopiln, for respondent. 

STDRGIS, J. [1] Plaintiff sued for and 
recovered $2,500 damages for injuries re- 
ceived by him in defendant's mine. The 
plaintiff, when injured, was descending de- 
fendant's shaft tor the purpose of repairing 
tbe pump, and tbe Injury was caused by an 
accumuIaUon of ice falling on blm from near 
the mouth of the shaft Tbe Injury occurred 
on Monday morning two days after Christ- 
mas, and tbe weather was quite cold. The 
shaft was laced with boards so as to form a 
smooth surface over the cribbing. There is 
evidence that the ice began forming on these 
lacing boards, near the surface, on the Satur- 
day previous. We are not sure from tbe evid- 
ence whether the mine was regularly operated 
on Sunday or not, but the platnUS was not at 
work that d^y. Some of the witnesses said 
that some Ice bad fallen down tbe shaft the 
day before tbe accident.. The pump was not 
operated at night, and, there being no heat 
from tbe steam pii)es in the shaft, a ccmsidei' 
able quantity of Ice bad formed by Monday 



«==>For other case* sse same topic and KET-NUMBBK tn all Key-Numbered Digests and Indezes 



lie 



MoJ 



BHIMMIN- V. O. & a MINIXO 00. 



77 



morning. The plaintiff went to work on tbat 
momlng and was directed to go down the 
ihaft and fix the pnmp, which we understand 
ft'a j operated by steam conveyed throng^ pipes 
descending tlirongh this shaott Tba plaintiff 
and three other men were let down hy- the 
hoisterman ; and, after examining the pump, 
plaintiff came up to the surface and In 15 or 
20 minutes was again being lowered through 
the shaft. When he was 100 feet or more 
down in the shaft the ice broke loose from 
above and fell on him. He says the Shaft 
iras full of escaping steam when he went 
down and up the same so that he could hard- 
ly see. and that it was not his duty to Inspect 
or keep the shaft in a safe oondition. This 
dnty derolved on the tub hooker and other 
workmen under the dlrecti<Hi of the ground 



The evidence shows that the ground boss 
ud tub booker were in and about the mine 
and that their attention was specially call- 
ed to the condition of the shaft and the 
accumulation of ice there some 20 minutes 
before It fell, and that the boss, then said 
he would have it removed or knocked down 
as soon as he got caught up, meaning ttiat 
he wanted first to get some dirt hoisted and 
ODt of the way. The tub hooker and ground 
boss were then Just starting down in the mine 
and the tab hooker testlfled that the ice then 
looked to blm like it was rather loose; that 
the boss told him to knock it down when he 
"got caugbt up." The evidence also is that 
most of the men had been lowered through 
this shaft while In this condition and that 
some dirt had been hoisted before this ac- 
ddent occurred. 

^^'bether or not the defendant was bound 
to anticipate the formation of ice near the 
satfaoe in this shaft because of the cold 
veatfaer then prevailing, the evidence shows 
that the ice began forming two days before 
this accident, and that the a'ttentlon of de- 
fendant's ground boss and the man whose 
doty it was to see that the abaft was kept 
safe was specially called to the apparently 
dangerous acciunulation of ice on the sides 
vt the shaft near the surface, about the 
time the men commenced work that morning, 
and some IS to 20 minutes before this acci- 
dent occurred. It was certainly a question 
for the Jury to say whether It was negligent 
to defer removing this apparently dangerous 
Ice, when the only excuse shown was that 
to stop long enough to do that would delay 
other work for a short time. 

(2, 3] Tlte defendant assigns error in mat 
the pt^tlOD, while alleging defendant's neg- 
ligence in this respect and defendant's knowl- 
edge, actual or constructive, of the danger- 
oos condition of the shaft, yet that it does 
not charge that defendant's knowledge of this 
dangerous condition existed for a sufSdent 
length of time before the accident for defend- 
ant to have removed the same by use of or- 
dinary care and diligence. Many cases are 
dted, and we havs no doubt as to it b«ing 



the law, that actual or constructive knowl- 
edge of the defect by the defendant should 
be alleged as well as shown to have existed 
for a Bufiadent length of time to afford a 
remedy by the use of reasonable care and 
diligence. Abbott v. Mining Co., 112 Mo. App. 
560, 555, 87 S. W. 110 ; MueUer v. Shoe Co., 
lOe Mo. App. 506, 84 8. W. 1010; Pavey v. 
Railroad, 86 Mo. App. 218. No d«tturrer, 
however, was asked to the petition. The 
evidence as to the above facts went in with- 
out obJectioB, and the Jury were Instructed: 
"And if the jury further believe from the 
evidence that defendant knew, or could have 
known by the exercise of reasonable care and 
caution, before ordering and directing plaintiff 
to go down into said mine, that ice had accumn- 
lated on the aides of the shaft of said mine, and 
that it was danKer(faB (if the jury believe it was 
dangerous), in time to have had it inspected and 
trimmed of said ice, before the accident com- 
plained of, and that defendant negligently failed 
and omitted to inspect fsaid shaft and to trim it 
of said ice, and that its failure to do so was 
the cause of plaintiff receiving the injuries com- 
plained of, if any, then the jury will find the 
issues for the plaintiff." 

Under these circumstances the objection 
comes too late, and the petition must be held 
good after verdict. Section 2119, R. S. 1909, 
reads: 

"When a verdict shall have been rendered in 
any cause, the judgment thereon shall not be 
stayed, • • • Impaired, or in any way affect- 
ed by reason of the following imperfections, 
omissioDS, defects, matters, or things, or any of 
them. • • * Eighth, for the want of any al- 
legation or averment on account of which omis- 
sion a demurrer could have been maintained; 
ninth, for omitting any allegation or averment 
without proving which the triers of the issue 
ought not to have given [the] verdict." 

•In Smith v. Greene, 187 Mo. App. 210, 173 
S. W. 705, the court, in speaking of a sim- 
ilar assignment of error, said: 

"The real test, in solving the question of 
whether a given insufficiency is fatal or not, is 
to ascertain if the allegations contain enough 
to support' an amendment which would state a 
good cause of action without substantial change 
of the cause defectively stated, or the injection 
into the case of a different subject-matter." 

In Davis v. Watson, 89 Mo. App. 15, 27, 
the court said: 

"But the defect was waived by the defendant's 
answering and going to trial. Black v. Crow- 
tber, 74 Mo. App. 480. And we may add that 
snch defects under section 672, Revised Statutes 
1899, supra, after verdict are cured, where it 
appears that the omitted allegations of fact were 
proved." 

The following cases will, we think, be 
found to hold that similar defects In a peti- 
tion are held not fatal after verdict when the 
facts were duly proven and the issues proj)- 
erly submitted to the Jury. Sawyer v. Rail- 
road, 156 Mo. 468, 476, 57 S. W. 108 ; Sexton 
V. Railroad, 245 Mo. 254, 263, 149 S. W. 21 ; 
Seckinger v. Manufacturing Co., 129 Mo. 590, 
31 S. W. 957; Winn v. Railroad, 245 Mo. 
406, 412, 151 S. W. 98; State ex rel. v. Reyn- 
olds, 137 Mo. App. 261, 286, 117 S. W. 653. 

A technical objection Is also made to the 
insbroction mentioned wbicb we have noUcedV 



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78 



187 SODTUWESTESN REPOBTEiR 



(Mo. 



but will not discuss, as we think tbe jury 
could not have been misled thereby. 

[4] The petition alleges that plaintiff, by 
reason of his injury, has lost much time. 
The evidence showed an actual loss of con- 
siderable time and an Impairment of plain- 
tiff's physical ability to do manual wotk. 
Some of the lost time occurred after the pe- 
tition was filed. The petition alleges sev- 
eral specific Injuries and their consequences, 
and that plaintiff was otherwise greatly and 
permanently injured. Oniere Is- no specific 
charge that plaintiff will suffer loss of time 
In the future. The evidence went in without 
objection as to the loss of time; and then 
at defendant's request the court orally struck 
out the evidence as to loss of time after the 
filing of the petition, stating to the jury: 

"This suit was filed on the 20th day of Jan- 
uary, this year, and this accident happened on 
the 27th day of December, 1914, and if you find 
a verdict for the plaintiff, in fixing the amount 
of damages, you will not take into consideration 
any losa of time after the date the suit was 
filed, after the 20th day of January, nor consider 
any of the testimony given as applying to any 
time after the 20th day of January.'' 

The plalntlfTs instruction on the measure 
of damages Is criticized In that It tells the 
Jury that, In determining the amount of the 
verdict In case of a finding for plaintiff. It 
should take Into conslderati<»i the loss of 
time, If any, without restricting the same to 
that lost before the suit was filed. The 
defendant relies on the rule of law that loss 
of time or earnings Is a kind of damage whiidi 
is not regarded as a necessary consequence 
of i)er8onal Injury, and must therefore be 
pleaded to entitle plaintiff to prove and re- 
cover for such loss. Ooontz v. Railroad, 116 
Mo. 669, 22 S. W. 672 ; Davidson v. Transit 
Co., 211 Mo. 320, 344, 109 S. W. 683; WeU- 
meyer v. Transit Co., 198 Mo. 627, 643, 95 S. 
W. 925 ; Paquln v. Railroad, 90 Mo. App. 118. 
It is sufficient, we think, to dispose of this 
point to say that the Instruction mentioned 
does not In terms authorize an assessment of 
damages for future loss of time. The loss of 
time mentioned in the Instruction must be 
taken to refer to the loss of time the proof 
of which was before the Jury. The jury had 



been specially told that no loss of time after 
the filing of the suit should be considered In 
estimating the damages, and to regard tbe 
evidence as applying only to such prior time. 
No evidence, therefore, was before the Jury 
as to loss of time except that occurtiiur be- 
fore the suit was filed. 

[S] If defendant was not satisfied with tbe 
restriction thus placed on the evidence and 
feared, as It now argues, that the jury would 
not observe this restriction. It should bave 
asked the court to repeat the same in tbe 
form of a written instruction. 

[S] Moreover, the rule is that an allega- 
tion of Injuries and that same have impaired 
tbe plaintiff's earning capacity and caused 
loss of his time, and that such injuries and 
condition are permanent Is a sufficient al- 
legation of future loss of earnings, to let in 
evidence of such future diminished earning 
capacity or loss of time. The defendant, 
therefore, was accorded mora than it was en- 
titled to in this respect. Pendegrass T. Ball- 
road, 179 Mo. App. 517, 638, 162 8. W. 712; 
SchoU V. Grayson, 147 Mo. App. 662, 664, 127 
S. W. 416; Perrier v. Mercantile Co., 168 Mo. 
App. 633, 138 8. W. 893; Abernathy t. Losk, 
182 S. W. 1049, and cases dted. 

[7] It is claimed that the damages allowed 
are so excessive as to require a remittitur or 
granting a new trial. It will not be profita- 
ble to set out the evidence or dlscass this 
question at length, and we will only say that 
according to plalntlfTs evidence, corroborated 
to a considerable extent by his physician, he 
had two ribs broken and received other se- 
vere injuries; that bis injuries are perma- 
nent and his ability to follow his usual oc- 
cupation very greatly Impaired. While the 
verdict is somewhat large, we have conclud- 
ed that it is not so large as to Imply that the 
name is the result of passion and prejudice. 
It is only In extreme cases that the courts 
are warranted In Interfering In this respect, 
and we will not do so in this case. 

Finding no error In the record, the Judg- 
ment will be affirmed. 



ROBERTSON, P. J. 
J., concur. 



and rABBINGTON, 



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STBAWBRUtOB ▼; STANDARD FIBES IKS. CX>. 



;T9 



STKAWBRIDGB t. STANDARD FIRE INS. 
CO. OF HARTFORD, OONN. (No. 12017.) 

(Ktnaas City Court of AMwala. iliagowA. 
June 12. 191&) 

1. InsnsAiTCK «=3500— FiKB Instjkanct— TaIt 
OTD PoucT Law. 

The valued policy lav (Rev. St. 1900, { 
7030) merely fixes the value of the insured prop- 
crt7 at the time of Insurance, and not its val- 
JK at the time of destruction. 

[Ed. Note. — For other cases, see rosurance, 
Cent Dig. Si 1275, 1276; Dec. Di^. «=»500.] 

2. iHBUBAirCE «=9646(Q — FnE Insttbahob — 
BuKOEIt OF PbOOF. 

In an action on a fire policy for the destruc- 
tion of an automobile, an article cbaniring in 
value, plaintiff has the burden of provine its 
Talne at the time of its injury. 

[Ed. Note. — For other cases, see Insurance. 
Cent Di«. { 1665; Dec Dig. <^=364C(S).] 

3. iNSintANOB «=>50O— FlBE IHSOBANOS— VaIt 

vttD PoucT Lav. 
Under Rev. St. 1909, S 7030. prohibiting fire 
ingurers to take a risk at a ratio greater than 
three-fourUis of the value of the property insured 
and declaiinK that when taken its value shall 
not be questioned in any proceeding, the value 
of an automobile insured for $1,500 is conclu- 
RTely fixed to be $2i000 at the time the insui^ 
anee was written. ' 

[Ed. Note.— For other cases, see Insurance, 
Cent. Die. U 1275, 1276; Dea Dig. «=>500.] 

4. LtStTBANCE «=3665(4) — FiBB InBVUASCK — 

Actions— KviOBNoc. 
In an action on a fire policy upon an auto- 
mobile, evidence held to warrant finding that 
the automobile, at the time of its destruction, 
was worth tlie sum fixed in the policy. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dj«. I 1722; Dec. Dig. «9=»665(4).] 

9. Irsuraitce «=s>6(K>— Fibb Inbubance— £)vi- 

DBRO— DBFBECIATION. 

In an action on a fire policy, evidence of de- 
predation of the article insured cannot be shown 
by proof that because it had been used by the 
insured it would sell for less sum than if not 
secondhand. 

(Ed. Note.— For other cases, see Insurance, 
Cent Dig. f 1695; Dec. Dig. «=>660.] 

6. Ihsubahce «s>602— Fibb Irbubastoi^Ao. 

noN— Attobnby's Fees. 
Where the insured, whose motorcar had been 
destroyed by fire, demanded the full amount of 
the policy and refused to discuss depredation, 
the musal of the insnrance company to pay the 
amount of the policy cannot be deemed vexatious 
within Rev. St 1900, f 7068, providing that In 
socb case the jury may allow a penalty and at- 
torney's fees, this being particularly true where 
it did not appear that the insured offered to 
credit tm the policy the sum he received for the 
wreckage, and so an attorney's fee was improp- 
erly allowed. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dig. | 1498; Dec. Dig. «=b602.] 

Ai>peal from Circuit Court, Jackson Goon- 
ty; Frank 6. Johnson, Judge. 

■To be officially published." 

Actlcm by Parson W. Strawbridge against 
the Standard Fire Insurance Company of 
Bartford, Conn. From a Judgment for plain- 
tiff, defendant appeals. Afilrmed, on condi- 
tion that plaintiff file a remittitur; other- 
wise, rerersed and remanded. 



Fyke & Snider, of Kansas City, for appel- 
lant Ed B. Yates, of Kansas City, for re- 
spondent. 

TRIMBLE, 3. PlaintUf saed npon an In- 
surance policy covering an antomobile. The 
policy Insured plalntUF against direct loss or 
damage by fire to an amount not exceeding 
$1,500 upon one Auburn automobile, factory 
No. 1428, gasoline, four-cylinder touring car, 
model 1910. There was a provision in the 
policy that: 

"This company shall not be liable beyond the 
actual cash value of the property at the time 
any loss or damage occurs, and the loss or dam- 
age shall be ascertained or estimated according 
to such actual cash value, with proper reduc- 
tion for depreciation, however caused.'! 

The policy was for one year from July 24, 

1912. Shortly after midnight on Jnly 10, 

1913, lacking a few days of being a year .after 
the policy was written, the machine burned 
while in use on the road in Dallas ciounty. 
The petition alleged that the car was burned 
and destroyed by flre and was wholly lost to 
the plaintiff, save that the wreckage left 
from said flre was thereafter sold by plain- 
tiff for the sum of $60, which was the rea>- 
sonable value thereof. 

The suit was for $1,450 (being the foU 
amount of the policy less the $50 received for 
the wreckage), with Interest at 6 per cent, 
from September 15, 1913, for an attomety's 
fee of $200 and for 10 per cent, of the loss 
as a penalty for vexatious refusal to pay. 
The Jury returned a verdict for $1,561.50 for 
the loss and assessed an attorney's fee at 
$180, but made no allowance for, and said 
nothing about, a penalty. The defendant has 
appealed, claiming that the court erred in 
matters respecting the determination of the 
question of the amount of plaintiff's loss, and 
also the allowance of the attorney's fee. 
With reference to the question of plaintiff's 
loss, it is claimed by defendant that plain- 
tiff offered no evidence whatever upon the 
value of the automobile at the time of the 
fire, and that the court erroneously excluded 
defendant's evidence offered to show the de- 
predation In value of the automobile at the 
date of its destruction. 

[1, 2] Section 7030, B. S. Ho. 1909, provides 
that: 

"No company shall take a risk or any property 
in this state at a ratio greater than three-fourths 
of the value of the proper^ insured, and, wheii 
taken, its value shall not be questioned in an; 
proceeding." 

It has been frequently held that this sec- 
tion goes no further than to conclusively es- 
tablish the value of the automobile at the 
date of the policy. And, where the property 
insured Is personalty of a changing character 
which Is subject to diminution or deprecia- 
tion, and the policy provides, as in this case, 
that the Insurer shall not be liable beyond the 
actual cash value of the property at the time 
of the loss, the extent of the insured's de- 



9T0T otiisr caass sa* same toplo and KB7-NUMI)BR In all K«7-Numb«r«d Oi<asts and ladszss 



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80 



187 SOnTHWBSTEJItN BBPORTBB 



(Ma 



mand and of the Inenrer's liability is, in the 
case of a total loss, the valne of the property 
at the time of its destruction by fire; and 
this question of the value of the property 
at the time of the flre is open to dispute and 
litigation. Bnrge Bros. y. Greenwich Ins. 
Co., 106 Mo. App. 244, 80 S. W. 842 ; Surface 
v. Northwestern Ins. C!o., 167 Mo. App. 670, 
139 S. W. 262; Non-Royalty Shoe Co. v. 
Phoenix Assurance Ass'n, 178 S. W. 246. 
And, in cases where the insurance is on per- 
'sonal property of a changing character or 
which is liable to depreciation from use or 
injury, the burden is on the plalntlflf to show 
the value of the property at the time of the 
fire. Sharp v. Niagara Fire Ins. Co., 164 Mo. 
App. 475, 147 S. W. 164. 

[3, 4] But in this case we think the plain- 
tiff did furnish evidentiary facts from which 
the Jury could find that the machine was 
worth at least all that the plalntifF was de- 
manding. It is true plaintiff offered no evi- 
dence expressly stating, in dollars and cents, 
the value of the automobile at the date of 
the flre. He did say, however, that "the ma- 
chine was in fine condition so far as I know 
at the time of the flre ; the only repairs ever 
made on the machine was to Ugbten up the 
engine, which I did myself, and tires." Now, 
by virtue of the statute (section 7030 afore- 
said) the value of the automobile, on July 
24, 1912, the date of the policy, was fixed, not 
at $1,600, the amount of the policy but at 
$2,000, since, nnder the statute, the $1,600 
was only three-fourths of the machine's val- 
ue. With the value of the machine on July 
24, 1912, conclusively fixed at $2,000, the 
only diminution on the value thereof, which 
could be considered In determining the loss 
for which payment can be demanded as in- 
surance, is the inherent depreciation in the 
machine itself through use, Injury, or dam- 
age, accruing to it suhtegitent to the date of 
the policy. And such diminution must be 
deducted, not from the $1,500, but from the 
value of the machine, as fixed by the statute 
and the policy, namely, $2,000. Spickard v. 
Fire Association of PhUadelphla, 164 Mo. 
App. 1, loc. dt. 4, 146 S. W. 808; Stevens v. 
Norwich, etc., Ins. Co., 120 Mo. App. 88, 106- 
108, 96 S. \V. 684. The evidence was that 
the machine was not used but was put away 
during the months between December 1, 1912, 
and April 1, 1013, though used the rest of the 
time elapsing since the policy was issued. 
If, now, the machine was worth $2,000 July 
24, 1912, and was not used during the winter 
months, and was in fine condition on July 10, 
1913, the date of the fire, this was a suffi- 
cient showing of facts from which the Jury 
could infer that the machine, on the day it 
burned, was worth all that the plaintiff was 
demanding because they could say a machine 
run only in the summer months, and put 
away and housed during the winter months, 
and in fine condition needing no repairs ex- 
cept tires which it got, would not depreciate 
from use or damage, inherent In the machine, 



to the extent of $500 or more than tliat, which 
It would be necessary to find in order for the 
loss to fall below what plaintiff was demand- 
ing. In other words, even If the depreciation 
tutsequent to the date of tlie policy amount- 
ed to 25 per cent, which would be $500, still 
this deducted from the $2,000 would not re- 
duce plalntifTs loss below the face of the 
policy, nor show it to have been less than 
the amount he was demanding. According 
to the evidence of defendant, the depreciation 
subsequent to the policy was this precise 
amount, namely, 26 per cent. So that, ac- 
cording to defendant's evidence, the loss did 
not fall below the amount demanded. 

[B] As to the evidence which defendant 
claims was erroneously exdnded, tlie rec- 
ord shows that plaintUTs connsel expressly 
stated that he had no objection to the de- 
fendant showing the depredation, if any, on 
the insured machine from the date of the 
policy up to the time of the flre. And the 
court permitted defendant to show what was 
the depredation subsequent to the issuance 
of the policy. Many of the questions asked 
by defendant, which the court exduded, were 
questions which, in reality, attacked the 
value of the car at the date of the policy. 
To have allowed them to be answered would 
have violated sedion 7030, which says the 
value at that date shall not be questioned. 
The other questions excluded did not attempt 
to show the actual depreciation In the ma- 
chine itseU from inherent deterioration 
through lapse of time, use, injury, or damage 
thereto, but were based upon the theory of 
depredation merely because it was, at the 
time of the fire, a uted car. Of course, at 
the time of the flre, the automobile could 
not have been sold for as much on the 
market as a new car of the same make and 
model; for, compared with the latter, the 
automobile in question would then be what 
is .commonly called a "secondhand" car. 
But, as between parties hereto, the value of 
the car, in respect of Insurance, means its 
actual value as an instrumentality for con- 
tinued use. If, through no depreciation 
inherent in the car Itself by reason of the 
lapse of time, use, injury, or damage, the car, 
as an instrumentality for continued use by 
the plaintiff, is worth as mudi or mote than 
the amount claimed, the defendant cannot 
complain. He cannot add to that actual in- 
herent depreciation the decrease in the price 
it would bring simply because it is not a 
new, but is now a used or. secondhand, car. 
One might buy a i3et of 'furniture, and, after 
using it in the house for one day without 
a particle of injury or damage thereto in 
any way, would be unable to sell it for any- 
thing Uke the price It would command if 
it had never left the store ; and yet the fur- 
niture, as subject of insurance between the 
owner and the insurance company, would 
be as valuable as ever, because the insur- 
ance company insures it as used propert; 
intended for further uae by the Insn; 



sur- 



IKK) 



STBAWBKIDGE ▼. STANDARD FIKE INS. CX). 



81 



We are, therefore, of the i^lnlon that the 
court did not err 1b the exdnsion «C erl- 
dence. 

[6] We oome now to the question of the 
allo^nince «t on attorney's fee Section 7068, 
B. S. Mo. 1000, provides that "it it shaU ap- 
pear from the evidence that the company 
lias vexatioasly refused to pay, the Jury 
may allow a penalty not exceeding ten per 
cent of the loss and a reasonable attorney's 
fee. The Jary did not allow the penalty, 
but did allow $150 for attorney's fee. The 
statute seems to Join the two, penalty and 
fee, and appears to make the fee subsequent 
to. If not dependent upon, the allowance 
of the penalty. We do not hold that. If the 
Jury finds there has been a vexatious refusal 
to pay. It cannot award the fee wherrf It 
has withheld the penalty, though It does 
seem that If the Jury thought there was a 
vexatious refusal they would have allowed 
nil that the statute authorized them to glre. 
The verdict says nothing about whether the 
Jury found a vexatious refusal or not. It 
merely assesses the damages on account of 
the loss and further assessed "the plalntlfifs 
damages as and for a reasonable attorney's 
fee in this suit in the sum of $150." There 
Is room for the suspicion that the Jury 
did not think there had been vexatious re- 
fnsal, but concluded that plaintiff, notwith- 
.standtng that fact, was entitled, as addition- 
al damages, to an attorney fee because he 
bad Incurred that expense in bringing the 
suit. However we need not decide the 
point here discussed, since, as we view the 
record, the objection to the allowance of an 
attorney's fee can be placed upon another 
ground. 

As said before, th% company had a right to 
question the value of the car at the time of 
the Are. The condition of the car and Its 
value at that time was a matter within the 
knowledge of the plaintiff and not of the 
defendant. The extent of the depreciation 
inherent in the car Itself was a matter 
vitally affecting defendant's rights. It there- 
fore had a right to Inquire of plaintiff as 
to the extent of that depredation and to 
leam from him the exact condition of the 
car. But on this matter plaintiff testified 
as follows; 

"I made out a proof of loss, which was fur- 
Disbed to He company. Afterwards Mr. Keller, 
an adjuster, and I think on the lOtft or the 11th, 
came to my office, commenced to fismre *ith me 
about the depreciation, and I .said, 'Well. Mr. 
Keller. I have a policy which calls for $1,500 
insurance, and I paid the premium for that 
anonnt of Inanianoe, and your company issued 
the p^cy, and yo* can't talk depreciation to 
me." 

On crosa-eramlnatton he said: 

"la the conversation with Mr. Keller I stated 
I wonld not take into consideration any depre- 
dation on acconnt of wear and tear on the car, 
and insisted <m the payment of the full amount 
of the policy, and I have been insisling upon that 

1S7S.W.-6 



all the time. Q. Ton insisted upon the payment 
of the full amount of the policy, didn't you?. A. 
Tea, sir. Q. And you absolutely refused to talk 
about a settlement upon anj' other basis? A. 
No, sir. Q. You mean that you would not con- 
sider terms of settlement upon any other basis, 
but you insisted upon the payment of the full 
amount? A. I did." 

It thus appears that no opportunity was 
given the company to adjust the question 
of even the depreciation of the car that could 
properly be cousldered, nor does it appear 
that the depreciation then sought to be ad- 
Justed before suit was brought was any- 
thing other than such as was proper to be 
considered. The company had a right to 
ascertain, before It paid, what was the con- 
dition of the car, and how much it had de- 
preciated since the policy was Issued. Afi 
the plaintiff would not allow the defend- 
ant to even talk depreciation to him, we do 
not think the defendant could be said to 
have vexatlously refused to pay; for plain- 
tiff was the one person best qualified to 
know what that depreciation was, and de- 
fendant had a right to obtain its Informa- 
tion from the one in the best position to 
know, and there Is no evidence that defend- 
ant was able to get It anywtiere else. In- 
deed, It appears that it was unable to do 
so, since its witnesses as to d^redatlon were 
not able to spei^ of this particular car be- 
cause they knew nothing of It, but only 
testified, as experts, as to what the depreda- 
tion from use could ordinarily be expected 
to be In that length of time with good care 
and handling. So far as the record shows, 
the defendant could not ascertain, without 
litigation, what was the true condition and 
value of the car at the time of the fire. In 
addition to this, from plaintiff's own evi- 
dence It appears that he had "a policy which 
calls for $1,500 insurance" ; in, other words, 
he was demaoding that stun; he. "insisted 
upon payment of the full amount of the pol- 
icy"; and yet, when suit was brought, the 
sum demanded and the amount recovered 
was reduced by the amount of the salvage. 
It may be this $50 was credited on the pol- 
icy at the time of the demand. If so, pos- 
sibly this latter consideration would have 
no bearing upon the question of ve.xations 
refusal tb pay. But the record nowhere 
shows this to be the fact; and, on the con- 
trary, plaintiff says he "insisted on the pay- 
ment of the full amount of the policy," which 
was $1,500. We are of the opinion that, un- 
der all these circumstances, the allowance 
of $150 attorney fee was improper. 

If, therefore, the plaintiff will, wlthlij 
10 days from the announcement of this opin- 
ICQ, file a remittitur of that part of thb Judg- 
ment which Includes the attorney fee, the 
rest of the judgment will be affirmed; oth- 
erwise the cause will be reversed and re- 
manded. 

It Is so ordered. All concur. 

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IST SOUTBWBSTJBiaK BBPORTBtB 



(Mo. 



LINDX2N V. McGUNTOCK. (No. 1208S.) 

(Kansaa Olty Court of App«a]a. Ifiasouri. 

June 12^ 1916.) 

1. Apfbai. and Erbob 4=»927(5)— DEinjBBEB 

TO EVIDKNOB— RBVIXW. 

In reviewiag the sustaining of a demurrer to 
the evidence, plaintifTs evidence can be accepted 
as true. 

[Bd. Note. — ^For other cases, see Appeal and 
Error, Cent Dig. | 3T48; Dec. Dig. ®=>927(5).] 

2. Husband and Wnw «=»3S5— Alienation 
or "Wite's AFTEcnoNB — AonoNS — Evi- 
dence. 

In a suit for the alienation of a wife's af- 
fections, evidence held sufficient to go to the 
jury. 

_p:d. Note.— For other cases, see Husband and 
Wife, Cent. Dig. S 706; Dec. Dig. «=»335.] 

8. Husband and Wm «=>33&— Alienation 
OF Affections— JuRT Case. 
Where a stranger, by his wrongful acts, 
estranges husband and wife, proof of such fact 
is sufBcient to carry the case to the jury. 

Wild. Note.— For other cases, see Husband and 
ife. Cent Dig. { 706; Dec. Dig. i8=>335.] 

4. Husband and Wmg 9=>324— Alienatiom 
OF Affections— Recovebt, 

To recover for the alienation of his wife's 
affections, it is not necessary for plaintiff to 
show that defendant's acts were the sole cause. 

W'Ed. Note. — For other cases, see Husband and 
ife, Cent Dig. { 682; Dec. Dig. <S=>324.] 

5. Husband and Wnx «=3324— Aliknatior 
OF Affections— Right of Action. 

The husband has a right of action for par- 
tial alienation of his wife's affections. 

[Ed. Note.— For other cases, see Husband and 
■Wife, Cent Dig. t 692; Dec. Dig. <8=»324.] 

6. Husband and Wife «=>324— Alienation 
or AFFEcnoNB— Reconciliation. 

A stranger has no right to interfere to pre- 
vent a reconciliation between spouses or prevent 
the husband from regaining his wife's affections. 
[Ed. Note. — For other cases, see Husband and 
Wife, Cent TUg. § 692; Dec. Dig. i&=>324.] 

7. Husband and Wife ®=9321— Ausnation 
OF Affections — Right of Action. 

It is not necessary, to recover for aliena- 
tion of a wife's affections, that her debaodiment 
be shown. 

[Ed. Note.— For other cases, see Husband and 
Wife, Cent Dig. { 692; Dec. Dig. <3=»324.] 

8. Husband and Wife «=3333(1)— Aliena- 
tion OF Affections— BuEDEN of Pboof. 

Where a stranger is the cause of estrange- 
ment between spouses, he has the burden, in 
an action for alienation of affections, to prove 
that his motives were proper, and that what he 
did was without intent to cause a separation. 

[Ed. Note.— For other cases, see Husband and 

Wife, Cent Dig. f 1124; Dec. Dig. «=»333(1).] 

9. Husband and Wife «=»333(9)— Aliena- 
tion OF Ajteotions— Sufficienot. 

Alienation of a wife's affections may be 
shown by circumstantial evidence, 

[Ed. Note.— For other cases, see Husband and 
Wife, Cent Dig. | 1124 ; Dec. Dig. <S=333(9).] 

Appeal from Circuit Court, Jadcsoa Coun- 
ty ; Clarence A. Bumey, Judge. 
"Not to be officially pubUshed." 
Action by John F. Idnden against T. R. 
McCUntock. From a Judgment for defend- 
ant, plalntUt appeals. Reversed and re- 
manded. 



Broaddns * Crow, of Kansas City, tat ap- 
pellant Harry E. Ifongeaeoker, at Kansas 
City, for respondent. 

TRlMBIiB, J. Plaintiff brongbt CUs anlt 
charging tbaA the defendant, while living In 
the home of plalntlfF and bis wife, obtained 
such an influence over her. as to control her 
In all family affairs ; that defendant Influ- 
enced her against plaintiff, pteivented ber 
from living wltb^ blm as his wite, destroyed 
plaintiff's home, and alienated bis wife's af- 
fections. 

The petition does not charge Oiat d^end- 
ant debauched the wife. It alleges that: 

Plaintiff "is not in a position to state poritive- 
ly the relation that coddts between defendant 
and hia wife, but that said parties are now liv- 
ing in one house, and that this plaintiff, the 
husband, is excluded therefrom for reasons best 
known to defendant and. plaintiff's wife." 

The acts charged against defendant.are al- 
leged to have been done willfully and mali- 
ciously npon his part At the close of plain- 
tiff's case, a demurrer to the evidence was 
sustained. An involuntary nonsuit was there- 
upon taken wltb leave to move to set the 
same aside. Said motion being duly filed 
and overruled, plaintiff appealed. 
' [1 ] In passing upon a demurrer to the evi- 
dence, the court must accept plaintifTs evi- 
dence as true and give It the benefit of ev- 
ery inference which can be reasonably drawn 
therefrom. H(<lne v. St Louis, etc., R. Oo., 
144 Mo. App. 443, 129 S. W. 421 ; Alexander 
V. Scott, 150 Mo. App. 213, 129 S. W. 991. 

[2] In order to properly apply these well- 
established rules to the case in hand, it is 
first necessary to clearly understand the pre- 
cise nature of plaintiff's cause of action, what 
it Is he charges,' what Is sufficient to estab- 
lish a prima fade case under the charge; 
and then the evidence must be examined to 
see whether it presents facts from which a 
jury might reasonably infer that plaintifTs 
charge is true. 

Plaintiff and his wife were married in 
1803 and Uved happily together untU 1912, 
when the troubles hereinafter stated arose. 
For a number of years, plaintiff and his wife 
and her father lived together in the same 
house. The plaintiff and his father-in-law 
bought a lot, and the home .was erected 
thereon with money bofrowed from a build- 
ing and loan association. Plaintiff's evidence 
is to the effect that he helped pay this off. 
Some time in 1906 defendant's wife died. He 
had a large house, and, being a friend of 
plaintiff's wife's family, invited plaintUT to 
move with his wife, child, and Zatber-in- 
law to his (defendant's) home. Plaintiff did 
not want to do so, saying they had Jost built 
and furnished a new home of their own. 
Whereupon, at the snggestion of plaintifTs 
wife, the defendant moved to plaintiff's home, 
and all of tbem lived amicably together un- 
til the death of the plaintiff's father-in-law 



'tfasPoT otber eases aea isom topic and KCT-MUMBBB in SD Kiy-Nombsrad DlgasU sad Indsxi 



^=SbgIe 



Uo) 



IiINDBN V. MoCLINTOOK 



8S 



on December 26, 1911. Defendant imM 93 a 
wedc board. 

Abont two months before tbe fafher-ln- 
lav's death, he, belleTlng he was going to 
die, wanted to transfer his Interest in the 
home to his daughter. The defendant attend- 
ed to this matter, and, on his advice, the fii- 
ther-in-Iaw and plaintiff Joined- in a deed to 
tbe defendant and immediately he made a 
deed to plaintiff's wife, tlms patting the en- 
tire title to the home In the wife. 

Plaintiff's evidence is that he and his wife 
sot along well together until after her fa- 
ther's death. Be further testified that after 
the death of his wife's father, the defendant 
"would interfere with my domestic relations, 
by telling my wife that everything she did 
was all . right, and would tell me to let her 
alone and go ahead about my own business." 

It seems that the wife began going to tango 
dances, tango teas, and card parties, some- 
thing she did not do before her father's 
death, and the husband objected. In these 
matters the defendant sided with plaintiff's 
wife and daughter telling the plaintiff ihey 
were doing aU right — ^to let them alone. The 
daughter at this time was 18 years of age, 
and it Is quite Ukely the wife began going on 
her account. There la no showing that the 
defendant tnolE them to these places, nor Is It 
to be inferred that either the wife or daugh- 
ter should receive an imputation upon their 
moral character for these things. However, 
the daughter appeared at both public and 
pifvate dances, giving exhibitions in costume 
with a young man as her dancing partner, 
and having her ];dctar» taken with him in 
dancing xwees. 

The plaintiff objected to his nUt going to 
the hotels and other places where these danc- 
es were given, and to his daughter appearing 
there as she did. But the defendant would 
advise the wife and daughter, In plalntUTs 
presence, to continue going ; and they did so. 
In justice to the mother and young lady, we 
say again that there seems to be nothing In 
the way of a stain upon their moral char- 
acter for having done these things. But they 
were ot such a natoie as that a father might 
be reasonably apprehensive about and have 
a right to object to, especially the giving of 
poblle dancing exhibitions in scanty costume 
with a young man dancing partner and hav- 
ing thehr pictures taken in the poses shown 
in the pictores presented in the record. Nor 
do we say that the defendant's siding with 
the wife and daughter and against the hus- 
band, and advising them to pursue their 
coarse against his wishes, would 6t itself con- 
stitute ground for a suit for alienation of 
the wife's affections. But it is mentioned as 
a drcamstanoe to be taken into consideration 
in viewing the entire situation to determine 
whether or not there Is room for a legitimate 
inference whldb the jury might draw as to 
whether tbe defendant aided in the turning 
vmj ot tbe wifC^ love from beriioBband. 



Abont three months after tbe father-in- 
law's death, the wife refused to occupy tlK 
same bed with ^Intlff, but slept In a bed- 
room on ttilrd floor, while her husband's bed- 
room remained on the second floor. The 
stairway to the third floor led almost direct- 
ly from the door of defendant's room to tbe 
wife's room on third floor. As the wife was 
not living with plaintiff In a wtfely relation, 
naturally the suspicions of the plaintiff were 
aroused, and he placed cards and pieces of 
paper so arranged that they would be dis- 
turbed if the door at the foot of the stair- 
way were op«ened during the night. Several 
times these papers were found to have fallen, 
indicating that the door bad been opened dur- 
ing the night But the plaintiff frankly ad< 
mlts that he does not know whether there 
was any clandestine meeting or any immoral 
act between defendant and his wife or not. 

On one occasion, about 9 o'clock at night, 
the usual retiring time In that household, 
plaintiff's wife was In his bedroom and he 
tried to induce her to stay with him in the 
room, locking the door in the attempt to keep 
her and trying to Induce her to live with him 
as his wife. . 'While he was thus trying to 
get bis wife to live with him as she bud be- 
fore, the defendant came to the bedroom 
door and told plaintiff tf he did not open the 
door he would "shoot it up." Whereupon 
plaintiff opened the door and his wife left the 
room, and the men went to bed In their re- 
spective bedrooms. 

There is evidenoe to the effect tlrnt plain- 
tiff protested against defendant's Interference 
with his domestic affairs ; that finally plain- 
tiff requested the defendant to leave bis home 
and that the defendant refused to go untld 
after the daughter graduated; that on an- 
other occasion the plaintiff told defendant to 
leave, and he did so, but plalntHT's wife and 
daughter went also. In a few days they re- 
turned, took possession of the house, chang- 
ed the locks on the doors, and when plaintiff 
returned to the house he was not allowed to 
enter. Shortly thereafter plaintiff, In eom- 
pany with a friend, visited the home about 
10 o'clock at night and knocked at the front 
door. The defendant came to the door in his 
nlghtclothes and^ upon learning who It was, 
threatened to shoot plaintiff, If he did nqt 
leave at once. Whereupon they left and the 
defendant called tbe police and had plaintlif 
arrested. From that time on, the defendant 
has lived In the home and Was living there 
at the time of the trial. 

Now, it may be that plaintiff himself was 
the cause of the loss of his wife's affection, 
but tbe evidence does not concloslvely shov 
that bis conduct was tbe sole catise thereof. 
It does apptoi that plaintiff drank, but, tf 
he drank to excess, such as to dlsropt the 
family, the evidence is that be did not be^ 
to drink to excess until after trouble had 
arisen between him and his wife; and yn 
must take the record as we find it and accept 
tt i^ Its face value. According to tfaat-erVr 



ioogle 



84. 



187 SOUTHWESTERN EEPOBTER 



(Mo. 



dence, defendant Indulged in no conduct to- 
ward his wife which would cause her to 
cease her affections for him^ 

[3-7] In this case, the defendant Is not a 
father nor a near relative, though he does 
seem to be an old friend of the wife's family. 
He occupies, therefore, the position of a 
stranger, and if the evidence is sufficient to 
Justify the Jury in inferring that his wrong- 
ful acta were the principal or controlling 
factors which caused the estrangement be- 
tween the husband and wife, then the show- 
ing was sufficient to make a case for the jury. 
3 Elliott on Ev. § 1643. It Is not necessary 
to show that defendant's acts were the sole 
and only cause of the loss of the wife's affec- 
tion. Hath V. Rath, 2 Neb. (Unot) 600, 89 
N. W. 612; Prettyman v. Williamson, 1 Pen- 
newlll (DeL) 224, 39 Atl. 731 ; Rice v. Bice, 
104 Mich. 371, 62 N. W. 833; Bathke v. Kras- 
sin. 78 Minn. 272, 80 N. W. 950. The husband 
has a right of action even for the partial 
alienation of his wife's affections. 16 Am. dc 
Eng. E)ncy. of Law (2d Ed.) 862. And a 
stranger has no right to interfere to prevent 
a reconciliation or to cut off all chance of 
the husband regaining his wife's affections. 
E^tlnl v. CasUni, 66 Vt. 273, 29 AtL 252, 44 
Am, St Rep. 843 ; Prettyman v. Wlllinmson, 
1 PennewUl (Del.) 224, 39 Atl. 731. It is not 
necessary, in order to maintain the action, 
that debauchment of the wife be shown. 15 
Am. & Eng. Ency. of Law (2d Ed.) 863. 

"The' wife may have a just cause for separa- 
tion, * * * but she may elect to abide by 
ber situation, and remain with her husband 
nevertheless. If she chooses to do so, no stran- 
ger has the right to intermeddle with the do- 
mestic and marital relations of husband and 
wife, and if he voluntarily does so he is ame- 
nable for the consequences." Modisett v. Mc- 
Pike, 74 Mo. 636, loc. cit 646. 

[8, 8] Unquestionably the evidence does 
tend to show that the defendant intermed- 
dled with plaintiff's domestic affairs. It 
may be that defendant acted honestly and 
in good faith and from proper motives. But, 
so far as plaintiff's evidence is concerned, 
there is no showing that it was necessary 
for him to interfere to protect the wife from 
ill treatment, nor is hla interference, in the 
.light of the evidence as it now stands, oon>- 
patible vrith an honest motive and a sincere 
desire to tserve the welfare of both parties. 
Tasker v. Stanley, 153 Mass. 148, 26 N. B. 
417, 10 L. B. A. 468. If the evidence is such 
that the Jury might reasonably infer that 
the defendant's advice and interference was 
one of the effective causes of the estrange- 
ment, then it is for the defendant, who is a 
stranger, to show that hla motives were 
proper, and that what he did was vrlthout 
Intention to cause a separation. Hlgham y. 
Vanosdol, 101 Ind. 160, loc. clt. 166; Johnson 
v. Allen, 100 N. C. 131, loc. cit. 140, 6 S. E. 
666; Tasker v. Stanley, 158 Mass. 148, 26 
N. E. 417, 10 L. B. A. 468. Plaintiff Is not re- 
quired to prove, by direct and positive tes- 
timony, that the defendant's advice 9nd in- 



terference . was the effective cause of Iiis 
wife's estrangement ; that may be proved by 
the circumstances, and it, as well as the mo- 
tives of defendant's advice and Interference, 
are questions for the jury to determiue. 
Modlsett V. McPike, 74 Mo. 636, loc. clt. 640; 
Westlake v. Weetlake, 34 Ohio St 621, loc 
cit 635, 32 Am. Bep. 397; 8 EUlott on Ev. | 
1644. 

We think that the situation presented by 
plaintiff's evidence was one calling for the 
decision of a Jury, and that it was error to 
sustain the demurrer. 

The Judgment is therefore reversed, and 
the cause remanded. All concur. 



UNDEBWOOD v. WEST et aL (No. 1499.) 

(Springfield Court of Appeals. MigsourL June 
17, 1918.) 

1. BAILB0ADa«=3312(3)— OfBBATION— DUTTTO 

Wabi*— Negliqencb. 
Where the locomotive bell was not rung for 
100 feet preceding crossing, the fireman having 
stopped rintring to consult his time card, the 
railroad's negligence per se was established as to 
one injured at the crossing. 

lEd. Note.— For other cases, see Bailroads. 
Cent Dig. i 990; Dec. Dig. <S=>312(3).) 

2. Railboaob ®=3338(2) — Operation — Injtj- 
aies to tsavelebs— oontmbuxoby negli- 
GENCE. 

Where plaintiff, driving his team about 5 
miles per hour, could have observed a train ap- 
proaching at right angles to his coarse, at 12 
miles per hour and about 90 feet away, 30 feet 
before he reached the track," and looked in the 
opposite direction but not toward the train, he 
was guilty of contributory negligence as a matter 
of law. 

[Ed. Note.— -Fw other cases, see Bailroads. 
Cent Dig. § 1081; Dec; Dig. ©=>333(2).] 

8. Evidence <e=»574 — Opiwiok BTinsNCK — 
Weiqiit and Sufwoienct. 
Evidence based on estimates and opinions 

must yield to physical facts. 

[Rd. Note.— $"or other cases, see Evidence. 
Cent Dig. | 2400; Dec Dig. «=9e74.] 

4. Bailboads <g=>327(l) — Opebation — Iwjtt- 
ries to Pebsons— Duty to Watch. 
The duty of one approaching a railroad 
track, which is of itself a warning of danger, to 
look and listen, is absolute, and failure to per- 
form it, when it would have been effective, is 
negligence as a matter of law, and cannot be 
excused by forgetfulness or mental ahsorption. 

[Ed. Note. — For other cases, see Kailronds, 
Cent Dig. §§ 1043, 1045; Dec. Dif(. <&s»327(l).] 

6. Bailboads ^=>327(5) — Opebatioh — Injxt- 

BIES TO PEBSONB— DUTT TO WATOH. 

The duty of a traveler about to cross a rail- 
road is to look both ways for coming trains, and 
tlie fact that lie looked one way, though he 
thought that was the most likely source of dan- 
ger, when to look both ways takes but an in- 
stant does not absolve him from beinjt negligent. 

[Ed. Note.— For other cases, see Railroads, 
Cent Dig. { 1048; Dec Dig. <8=>S27(5).] 



6. BaH/Boads €=»335(1) — Injubies to Per- 
sons—Comparative Neouob.vcb. 
Althoogh defendant railroad Was negligent 
in operating its train, plaintiff cannot recover " 



C=sFor other cosei lee same topic aad KBY-NUMHER la all Kef -Numbered Digests and ludexoi' 



T 



Ma) 



'Cin>EBWOOD V. WEST 



85 



it was guQty of conUibtitoEy libgllgence, tbotudi 
ft waa comnaratively slight. 

[Kd. Note.— For other coses, see Bailroads, 
Cent Dig. % 10S4; Dec Dig. «=335(1).] 

fiobertson. . P. Jn dissenttng. 

Appeal from Glrcalt Cknirt, DnnUln Conn- 
ty; W. S. C. WalSer, Jndga. 

Action by Cecil Underwood against Thom- 
as H. West and others, receivers of the 
St Louis & San Franclso Railroad. Judg- 
ffiCDt for plaintiff, and defendants appeal. 
Reversed. 

W. F. Evans, of St. Loois, and Moses Why- 
bark and A. P. Stewart, both of Cape Gir- 
ardeau, for appellants. Bradley & McKay, 
of Kennett, for respondent 

STURGIS, J. Plaintiff recovered $2,000 
for personal injuries received by being struck 
by defendants' locomotive at a grade street 
erossing In the town of Campbell. The rail- 
road crosses the street in question at right 
angles, and plaintiff, with a companion, 
pUdntlfl doing the driving, was, when in- 
Jnred, traveling west in a two-horse buggy. 
The negligence on which the case went to the 
Jury is that the train in question was running 
at a speed in excess of that allowed by city 
ordinance, five miles per hour, and that no 
signals by bell or whistle were being given 
as the train approached the crossing. 

[1] There la but one issue here, that of 
plaintiff's contributory negligence duly plead- 
ed in the answer; for, while the evidence Is 
connictlng as to the speed of the train, the 
Jury has settled that question, and defend- 
ants' trainmen concede that, while the 
vhistle was sounded some distance back and 
the bell was rung for a time thereafter, it 
was not being rung during the time the train 
passed over the last 100 feet, or thereabouts, 
before reaching the crossing. The fireman 
who was ringing the bell says that he stopped 
doing 80 In order to consult his time card, 
niese fttcts established the defendants' neg- 
ligence per se, and the facts as to tlie speed 
of the train and the failure to give warning 
signals are Important only as they bear on 
the question of plaintiff's contributory negli- 
gence. The contributory negligence asserted 
is that plaintiff could, If he had locked, have 
seen the approaching train, and that he heed- 
lessly drove on the track immediately in 
front of it. 

12J Tbe^raln was coming from the north 
and plaintiff approached the crossing on one 
of the principal streets of the town from the 
east on the evening of a hot June day ; the 
plaintiff and his team being .tired from a 
long day's dztv* to some country towns with 
plaintiff's companion, a traveling man, who 
lamped out of the bnggy Just in time to es- 
cape Inlnry. Stating the fatits most favora- 
bly to plaintiff, his view of the track and any 
train coming from the north was obstructed 
and procticaUy cot off for some distance 
wlUle passliig a store buUdlng frMttlng east, 



its aide flush with the street on which 
plaintiff was driving, and the rear &}A ex- 
tending to a point within 41 feet from the 
track. Whether plaintiff had a clear view of 
the track northward fOr the next 10 or 12 
feet after passing the rear end of this store 
bnllding is perhaps in doubt, as there was a 
shed of that width with wooden framework 
and covered with woven wire, attached to 
the west end' of the store building. Plaintiff 
testified that the wire shed wos partially 
tilled with something which prevented his 
seeing through it, though he does not say 
he tried to do so; but other witnesses, In- 
cluding the iproprietor of the store and shed, 
deny tills and say that the open shed con- 
stituted no obstruction. Resolving this In 
plaintiff's favor there would yet be 80 feet 
between the shed or wareroom and the track. 
It Is conceded that, for this distance after 
passing this building and shed, plaintiff had 
a clear view of the track for at least 200 
or SOO feet north of the crossing, unless it be 
that his vision was further obstructed by a 
coal shed on defendants' right of way be- 
tween the wire shed or wareroom Joined 
to the .store building and the' railroad track. 
This coal shed was back north from the side 
of the street, the exact distance not being 
shown, but it was 40 or 50 feet from where 
plaintiff was driving In the street Nor is 
its exact size shown, but the front was some 
12 to 14 feet. There was a driveway of 8 
or 9 feet between the wire-covered shed and 
the coal shed, which was wholly unobstruct- 
ed, and a like distance or a little more, un- 
obstructed, between the coal shed and the 
track. The Important thing In determining 
as to this coal shed being an obstruction Is 
Its height. Plaintiff's witnesses say the coal 
shed was 8 or 9 feet high and would ob- 
struct a view of the track, which we may con- 
cede, but did it obstruct the vision in such a 
way as to prevent a person riding in a buggy 
from seeing a coming train? Plaintiff's prin- 
cipal ^vitness, Kennedy, said: "The coal 
house is 8 or 9 feet high, and think a person 
sitting In a buggy could see over It" Hie 
undisputed evidence Is that the track was on 
an embankment 2^ feet above the grt^de as 
it passed the coal shed and crossing, the 
street being somewhat, upgrade tof 10 or 12 
feet before reaching the track. A number 
of disinterested witnesses familiar with the 
surroundings said the coal shed was about 
6 feet high next to the track and 6 feet on 
the east side with a shed roof; but, grant 
that it was 8 or 9 feet high, yet Is it not cer- 
tain tliat with the well-known height and 
size of a locomotive and two cars attached, 
running on a track 2^ f«et above gtuAa, that 
this coal shed would not prermt plaintlfl, 
looking at an angle. If he looked at all, from 
seeing the train? 

The evidence of plaintiff is that the train 
was running 10 or possibly 
boor. The plaintiff was 



Ibly 12 miles per (^ ^^ci]c> 
drivine in a slowy VjVJOy IC 



88 



187 SOTTTHWESTEStN KBSPaRTBB 



(Mo. 



trot, did not dwcfe up tor tbe crossing, and 
was certainly driving one-tblrd to one-half 
as fast as the train. Tbe engine strnc^ tbe 
buggy about ooiter, the horses being over 
the track, so that, while plalotlfl was coyer- 
ing the 30 feet between the shed attadied to 
the store building and the track, the train 
oorered not more .than 60 to 90 feet. There- 
fore, when plalntur emerged from behind 
the store and attached shed, the train was 
not over 90 feet away and the coal shed near 
halfway between them. Three photographs 
are In evidence taken shortly after the ac- 
cident, the correctness of which are not ques- 
tioned, showing a horse and buggy with a 
man In It, the one Just as tbe man emerges 
from behind the store building and attached 
shed, and the others at Intervals of about 
10 feet further toward the track; and in 
each an engine and cars appear beyond and 
considerably higher than the cool shed, and 
the view of same not materially obstructed. 
These photographs and the evidence showing 
the physical facts demonstrate beyond con- 
trorersy that the coal shed did not constitute 
such an obstruction as prevented the plaln- 
ti£F tn his buggy from seeing the approaching 
train; and that plaintiff could, bad he look- 
ed at any time after he .passed the store 
buUdlng and shed, have seen tliis approach- 
ing train. So heedlessly did plaintiff drive 
oo this track that, though the coming train 
attracted the attention of a number of people 
nearby, and one man across tbe track ahead 
ot pladntlff and in apparent plain view 
waived and hallowed to him to stop, he 
failed to see or hear this additional warning, 
[t] Any evidence, especially when based on 
estimates and opinions, must yield to the 
physical facts. Hayden v. BaUroad, 124 
Mo. 566, 573, 28 S. W. 74; Payne v. Bail- 
road, 136 Mo. 562, 38 S. W. 808; Zalotuchin 
V. Metropolitan Street Railway Co., 127 Mo. 
App. 577, 106 S. W. 648; Wray v. Electric 
Light & Water Power Co., 68 Mo. App. 380. 
In Baker v. Ballway, 122 Mo. 533, 589, 26 
S. W. 20, 39, the Supreme Court said : 

"This matter of denying probative force, even 
to direct and affirmative testimony, when such 
testimony is plainly at war with the physical 
ffuaa and aurroundings, has passed into prece- 
dent" 

TbB crarts have repeatedly held that 
where the physical facts are such that one 
eoold not have looked, at a given point con- 
stituting safety, without seeing an approach- 
big train, his saying that he did so but saw 
none is taken for naught and his contribu- 
tory negligence declared as a matter of law. 
Dfkss v. Railroad, 238 Mo. 38, 141 S. W. 861 ; 
Huggaxt V. Railway, 134 Mo. 673, 36 S. W. 
280 ; Payne v. Railroad, supra. In this case, 
however, plaintiff does not daim that he 
even tried to look for a train to the north 
till his hoiaea were going upon the track 
and then the train was right on him — ^too 
late to stop. He says he looked to the south 
towavA^'tiw depot, thlnklaga train was wtre 



llkdy to conie from tluft direction, and that 
he did not look north till his team was right 
on the track and the train right at him. 
His only excuse is that, even if he had look- 
ed, he could not have seen sooner, or at 
least In time to have averted the ooUlBlon. 
The plaintiff testlfled: 

"I didn't pay any attention as I was oomins 
down here as to whether there was any trains on 
the track or not; I didn't hear or see any. I 
was watching the crossing just like anybody 
would Koing to go across, didn't see any train 
until just before I was struck, and then I saw 
It coming right down the track." 

And again: 

"I just looked down toward the depot and 
saw nothing there and then looked np and saw 
the train right at me. When I. looked north I 
was right at the track, wasn't plumb on the 
track, the horses might hava been going upon the 
track." 

[4] The case narrows Iteelf to this one 
proposition: Was plaintiff guilty of con- 
tributory negligence as a matter of law in 
not looking to the north as well as the south 
within this space of 30 feet, when to look 
would have been to discover the train? 
Plaintiff was perfectly familiar vrith this 
crossing and the surroundings, having passed 
there many times. We have assumed as 
most favorable to him that plaintiff ap- 
proached the crossing, as he says he did, at 
a moderate rate of speed, 3% to 5 miles per 
hour, though the ' evidence shows' his team 
was trotting and he did not check the speed 
for the crossing. If he was going faster and 
knovrlng that his sight and hearing were ob- 
structed by this building until so near the 
track, he would be guilty of contributory 
negligence in that respect Had he been 
alert and looking for a train, he could have 
stopped his team almost instantly. He was 
not In a dangeirous situation, and his team 
hardly became frightened when the- buggy 
was torn loose from them by the train. 

The law applicable to cases of this char- 
acter Is 80 well known and has been stated 
and restated so often that there Is no diffi- 
culty in that respect. The only difficulty Is 
in applying the law to the facts of the par- 
ticular case. We merely repeat when we Ba,y 
that a railroad is in and of Itself a warning 
of danger to one about to cross It. Such 
person must take note of the danger and act 
with care to discover approaching trains. 
It is his duty to be alert and to actively use 
his eyes and hearing to ascertain whether 
trains are approaching or not Forgetfol- 
ness, thoughtlessness, mental absorption, or 
reliance on signals being given will not ex- 
cuse the duty of looking and listening before 
venturing on the trade The duty of looking 
and listening Is absolute, and a failure to 
do so when same would be effective Is neg- 
ligence as a matter of law. 'Sangulnette v. 
RaUroad, 196 Mo. 466, 489, OS K. W. 386; 
Farrls v. Railroad, 167 Mo. App. 892, 388, 151 
S. W. 979 ; Barrett v. Delano, 187 Mo. App. 
501, 608, 174 S. W. ISli Hayden v. Railroad, 
124 Ma .66(S.,28 & W. ^4i. aOuaUt r, tMl 



bgle 



Va) 



TATZiOS ▼. IJITSK 



87 



road, 191 Mo; 218, 228, 00 8. W. 199, 8 h. 
R. A. (N. S.) 196; Harsbaw v^ Baltroad, 173 
Mo. App. 4fi&, 159 S. W. 1; Jackson t. BaU- 
nad, 171 Mo. App. 430, 440, 166 S. W. 1005; 
WtOker ▼. Wabadi Ballroad, 198 Mo. 453, 02 
& W. 83. Wbat la said by the court In the 
Farrls Case, supra, is applicable here. 

"Tbia daty to look and listen, before attempt- 
ing to cross the track, includes the obligation to 
se« and hear a train ; and. where the undisputed 
evidence shows that the deceased, by looking, had 
an opportunity to see the approaching: train be- 
fore the time of the accident, and that his oppor- 
tunity was such that he could not hare failed 
to have seen or heard the train in time to avoid 
the injury, if he had used ordinary care in look- 
ing, then under the law he- will be deemed to 
bave seen and heard the train, althcufch there 
was no testimony that he did see it. Under such 
circnmstances, the traveler is deemed to have 
wen what was plainly to be seen. This doctrine 
is applied in cases where it was dayliKht and the 
encine or train in plain view, and could nnoues- 
tionably have been seen if the traveler had look- 
ed in the direction from whence it came. * * * 
Granting that on account of the obstructions the 
deceased could not have seen the approachlne 
train from the time be left the saloon until be 
had reached the northeast comer of the box car, 
it does not help the plaintiff's ease. On the 
contrary, the very fact that the view was ob- 
structed until he reached this point made it all 
the more necessary for bim, when be had reach- 
ed that point, to look for the approachins train 
before attempting to pass over the track." 

This case bolds that a pedestrian was neg- 
ligent as a matter of law when he had a 
clear space of 6 feet to look after passing 
an obstructioiL So short a space as that 
might not be applicable to one driving a 
team, but here the clear space, was 30 feet 
See Jackson ▼. Bailroad, 171 Mo. App. 430, 
451, 156 S. W. 1005. This is quite a different 
case than that of Woodward t. Railroad, 152 
Mo. App. 468, 133 S. W. 677, in which the 
court held that, where plaintill looked once 
after passing an obstrnction at 35 feet in 
the direction that the train came from and 
saw that the track was clear for a distance 
of 400 feet, then plaintiff could not be held 
guilty of negligence as a matter of law for 
Qot looking a second time nearer the rail- 
road where she could see further, her atten- 
tion being distracted by an engine In the 
other direction. That was the strongest 
case we could find in plaintifTs favor in de- 
ciding the Jackson Cas«, 171 Mo. App. 430, 
156 S. W. 1005, and on that case principally 
we affirmed the Jackson Case by a divided 
court The facts of this case also differ ma- 
terially from those In Barrett v. Delano, su- 
pra, on which plaintiff relies; for in that 
case the train was running at a much higher 
rate of speed and is described as — 
"mniung down grade, with minimum noise, he- 
Und the barrier of the embankment which 
screened it from plaintiff's view and ohstracted 
the tianamission of its sounds." 

As to the eridence, the court said: 

"The testimony of this witness corroborates 
tltat of plaintiff and tends to show that he could 
not have seen the train until the heads of his 
team bad entered, or were just on the point of 
enterinx. the zone of danger." 



, Here the plaintiff could have seen the 
train by looking north when bis horses' 
heads were some 20 feet from the track and 
the train was running at a low rate of speed. 

[E] The dnty of a traveler about to cross 
a rfdlroad Is to look both ways for coming 
trains; and the fact that he looked one way, 
though he thought that was the most like- 
ly source of danger, when to look both ways 
takes but an instant, does not absolve him 
from being negligent Porter v. Railway, 
199 Mo. 82, 96, 97 S. W. 880 ; Kelsay v. Rail- 
way, 129 Mo. 362, 872, 30 S. W. 389 ; Sims v. 
RaUway, 116 Mo. App. B72, 92 S. W. 909. 

[•] In such cases it Is obvious that the 
fact that defendant was negligent In either 
or both the specified grounds of exceeding 
the ordinance speed limit and of failing to 
give the statutory signals on approaching a 
public crossing does not help plaintiff's case; 
for that Is merely proving that both were 
negligent, and In such case plaintiff can- 
not recover. Hayden v. Railroad, 124 Mo. 
566, 673, 28 S. W. 74; Keele v. Railroad, 
258 Mo. 62, 77, 167 S. W. 433; Jackson v. 
Railroad, 171 Mo:- App. 430, 449, 166 S. W. 
1005. The law In this state is that if plain- 
tifTs negligence, though comparatively slight, 
contributes to the accident causing his in- 
Jury, he cannot recover, thongh defendant's 
negligence Is inexcusable. Until the Legisla- 
ture adopts the rule of comparative negli- 
gence, we are compelled to follow the law 
in this respect. 

The result is that the case is reversed. 



PARRINGTON, J., 
SON, P. J., dissents. 



concurs. ROBEBT- 



TATIX>B et aL ▼. LUSK 



et aL (No. 1722.) 
Missouri. Jane 



(Springneld Court of Appeals. 
17, 1916.) 

1. RAiutoADS «=»484<l)—FntES — Actions — 

BVIDBNCE. 

In an action against a railroad company for 
firing a sawmill, evidence held sufficient to carry 
the case to the jury. 

[Ed. Note.— For other rases, see Railroads, 
Cent Dig. {§ 1740, 1746; Dec. Dig. «s>484a).l 

2. Railboaos ®?>482(l) — FiBE8 — Actions- 

EVIDBNCK. 

That a raOroad company fired premises ad- 
jacent to its tracks may be established by cir- 
cumstantial evidence. 

[Ed. Note. — For other cases, see Railroads, 
Cent Dig. t 1730; Dec. Dig. <g=>482(l).] 

8. Railboaos 9=»486(4)t-Fibks— AonoNft— In- 

SXBUCTIONS. 

In an action for the destruction by fire of 
premises adjacent to a railroad right of way, 
an instracti<Hi given on behalf of the plaintiffs, 
authorizing verdict in their favor if the jury 
believed that it was more likely that their prop- 
erty was set on fire by an engine being operated 
on defendants' track than from any other cause, 
was erroneous, not requiring the inry to find 
that the premises were so fired, even though such 



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joogle 



88 



187 SOUTHWESTERN BJBPORTEB 



(Mo. 



an Instrnction as a csntionary instruction upon 
behalf of the defendants may have been proper. 
[Ed. Note. — For other cases, see Sailroads, 
Cent. Dig. § 17B1; Dec Dig. «=485(4).] 

Robertson, P. J., dissenting in part. 

Appeal from Circuit Court, New Madrid 
County; Sterling H. McCarty, Judge. 

Action by G. R, Taylor and others against 
James W. Lusk and others. From a judg- 
ment for plainticrs, defendants appeal. Re- 
versed and remanded. 

W. F. Brans, of St. Louis, and Moses Why- 
bark and A. P. Stewart, both of Cape Girar- 
deau, for appellants. Perkins & Baynes, of 
liUbourn, for respondents. 

STURGIS, 3. We aU agree that this case 
should be reversed and remanded, but for 
somewhat different reasons. The case was 
first assigned to ROBERTSUN, P. J., and the 
following statement of facts prepared by blm, 
with some slight modifications, wUl be adopt- 
ed: PlaintiCTs' sawmill, near defendants' rail- 
road, was destroyed by fire. They sued de- 
fendants and obtained a Judgment, from 
which defendants have appealed. The trial 
was to a Jury, and the defendants submit 
here that the verdict should have been di- 
rected for them, and that an instruction 
gjyea In behalf of plaintiffs which author- 
ized a verdict In their favor if the jury be- 
lieved "from all the evidence in the case that 
it was more likely that plaintiffs' mill wad 
set on fire by an engine being oi>erated on 
defendants' track than from any other cause" 
was erroneous. The plaintiffs' mill was situ- 
ated on the west side of defendants' railroad, 
parallel therewith, and about 90 feet from 
the center of the tr&cHs.. At that point the 
railroad runs nearly southwest and north- 
cast and curves to the east. On the night of 
April 24, 1915, at about 11 o'clock, a freight 
train passed on defendants' railroad going 
north, and about half an hour later the south 
end of the mill was discovered in fiames. 
The mill was a frame building, two storiei^ 
high, and with an old plank roof which 
was partly open (40 feet downstairs, and 
10 or 12 feet upstairs on the south end) on 
the side toward the railroad. On the night of 
the fire, and for some days prior thereto, 
there was a high wind blowing from the 
direction of the railroad toward the mill and 
the weather was dry. There was testimony 
that the track was about level at the place 
where the defendants' railroad passed the 
mill, and the train "slowed up and then 
speeded up." One witness who resided a 
short distance north of the mill, less than 
1,000 feet, testified that she observed the 
train when It passed her, but did not notice 
it throwing any sparks. Some other witness- 
es testified that they had seen engines at 
that point throw sparks 40 feet high at night, 
as high as the trees, and one witness testified 
that three days before the mill burned she 
put out two or three small fires during, tbe 



daytime between tlie mill 'and f&e railroad, 
started within kbont 5 ffeet of the mill, and 
that these were started by a passing train. 
Other witnesses testified that they had seen 
live sparks going beyond the rtght of way. 
The mill was not in use at the time It burn- 
ed, and had not been operated for over a 
year. No other origin of the fire is suggested. 
Defendants offered no testimony. Some of 
the witnesses stated that the mill was 40 
feet from the right of way, and all who 
spoke of the distance from the track placed 
it at about 90 feet The witness who put 
the fire out a few days before the mill burned 
said the mill was 30 feet from the right of 
way fence, and that the fires she extinguish- 
ed were 25 feet from the fence. On the day 
on which this witness discovered the fii« 
near the mill there must have been a high 
wind, and the weather was evidently dry; 
as the witness testified that these conditions 
had existed some days prior to this fire. As- 
suming that it is found that the engine was 
emitting sparks, and that the conditions were 
as testified to, then we would, in order to 
uphold this verdict, have to reason about as 
follows: At one time a few days before the 
mill burned a live spark was carried to with- 
in 6 foet of the mill, and there ignited thc) 
dry vegetation. Therefore at this time, prac- 
tically the same weather condititms prevail- 
ing. It would be carried 5 feet further and 
Ignite the mill. The fire was discovered 
about half an hour after the train passed, 
and the whole mill was then on fire, showing 
that It had been burning approximately that 
long. For this reason it cannot be told Just 
where the fire first started. 

Under these facts ROBERTSON, P. J., 
is of the opinion that the testimony Is not 
sufticlent to fix liability upon defendants 
for this fire under the rulings in Qibbs v. 
Railroad, 104 Mo. App. 276, 282, 78 S. W. 
8.35 ; Manning v. Railroad, 137 Mo. App. 631, 
635, 119 S. W. 464; Frlta v, RaUroad, 243 
Mo. 62, 148 S. W. 74. 

[1-8] FARRINGTON, J., and the writer 
are of opinion that plaintiff made a case 
for the jury under proper Instructions, but 
that the Instruction complained of Is er- 
roneous, for these reasons: The evidence In 
the case is purely circumstantial, but facts 
may be proven by circumstantial evidence as 
well as by direct evidence. We all agree that 
the instruction is not erroneous, however, be- 
cause not requiring the facts proven to be 
such as to exclude every reasonable possi- 
bility of the fire having. some other origin. 
The statement in the opinion (Sheldon ▼. 
Railroad, 29 Barb. [N. Z.] 226) quoted from 
In Peck V. Railroad, 31 Mo. App. 12S, 128. 
to the effect that the proof in this kind of 
cases must be such as to leave no reasonable 
doubt as to the origin of the fire, has not 
received the sanction of our Supreme Court 
in subsequent cases which have come to oar, 
attention. Kelley v. BalUoad, 151 Mo. App. 



Ogle 



m) 



TA~VXOK ▼. LUaK 



»i, 310, 3U, 131 8. W. 718, and ca»ee there 
;it«l. In the case of Big BlTer Leud Co. v. 
Kailroad, l;i!3 Mo. App. 394, 400, 101 S. W. 
S6, the statement of the law quoted from in 
[he Peck Case waa condemned and the de- 
isions to the contrary reviewed. We think 
)ur Supreme Court has, In eftect, repudiated 
±at doctrine, and the New Tork Court of 
ippt'al?, in the same case (Sheldon v. Rall- 
■oad, 14 N. Y. TiH, 67 Am. l>ec. 186) repudl- 
ited the utterances of said quotation. In 
:aiBpbeU y. Hallway, 121 Mo. 340, 348, 26 
i. W. 936, 937 (25 U B. A. 175, 42 Am. Bt. 
iep. 530), it la said: 

"The evidence was all circumstantlaL It 

(u important, then, to show that there was a 
iossibility that sparks may have been thrown a 
listance sufficient to reach the building in which 
he fire originated, and that they contained heat 
■Muih to set it on fire. The fact that live 
parks were thrown from engines, nud did ig- 
lite grass, and other combustible materials, 
roold tend to prove the probability that the 
in was commnnicated from an engine." 

And again: 

"We think the evidence tended to prove the 
Kssibility, and consequent probability, that the 
ire was communicated to plaintiff's property 
rom one of defendant's engines, and that the 
ridence was admissible, and its probative force 
FU for the determination of the jnry." 

See, also, the Manning Case, supra. 

The mere use of the word "likely" Instead 
•f "probable" la the Instruction Is of little 
onseqnencc, as we think they carry much 
be same meaning, though the word "prob- 
ilile" should be used to avoid criticism 
ind as being more accurate and less likely 
be misunderstood In this connection. 

We consider that It is sufficient to sustain 
. verdict for plaintiffs In a case of this char- 
cter based on circumstantial evidence, that 
he evidence shows that the fire could hate 
een communicated from the engine, and that 
nch Is the most probable source of Its orl- 
to. It will be noticed, however, that the In- 
trnctlon first mentioned, given for plaln- 
Iffs, directs a finding for them In cpse the 
ory found that the origin of the fire was 
nore likely from the engine than from any 
t' (T cause disclosed by the evidence ; In 
'■LvT words, that plaintiff Is entitled to a 
trdict whenever the Jury finds that the evl- 
'enfe points to the engine as the most prob- 
Me source of the fire without requiring a 
IcdiDj; that the engine did, In fact, start 
Bch fire. We think the jury should be re- 
icired In all cases, and especially so when 
he evidence Is purely circumstantial, to find 
iat defendants' engine did, In fact, set Are 

the destroyed property, and that there is 

1 substantial difference between requiring 
lie jnry to find that the engine was the 
TOrce of the fire and In finding that it was 
lie most probable source. Hero the jury 
'ere told to base their verdict <m a finding 
that It was more likely that plaintiffs' mill 
'>* set on fire by an engine operated on de- 
'-Ridants' track than from any other cause," 
tithoat reqairlng a findlns that It did do 



80. A jury might readily- find tint the en- 
gine was the most probablfe cause, bat be 
unwilling to find that defendants' engine did. 
In fact, set the mill on fire; and no less a 
finding should be allowed In determining de- 
fendants' liability. 

In Fritz y. Railroad, 243 Mo. 62, 78, 148 
S. W. 74, 78, speaking of a case similar to 
this, the court said: 

"The evidence relied on to show the origin 
of the fire is strictly clrcnmstnntial ; that is, 
the main fact, vii., the cause of the fire, stands 
to be proved by the proof of surrounding condi- 
tions and circumstances 'whose existence Is a 
premise from which the existence of the princi- 
pal fact may be concluded by the necessary 
laws of reasoning.' Bl. L. Diet, under 'Cir- 
cumstantial Evidence.' 'The soundest test of the 
validity of that sort of evidence is that no other 
theory but tlie hypothesis upon which the con- 
clusion is based can be formed.' Per Hughea, 
J., in Mussalwhite v. Receivers, 4 Hughes, loc. 
cit. 109 IFed. Gas. No. 9,972], In circumstan- 
tial evidence the principal and ultimate fact 
Is got at by way of argument and by method 
of demonstration In the nature of reductio ad 
absurdum. Will's Cir. Ev. p. 17. Therefore, In 
cases turning on circumstantial (or what is call- 
ed by the civilians oblique and by the Scotch ju- 
rists argumentative) evidence, the proof should 
have a tendency to.exdude any other reasonable 
conclusion than the principal fact. Says the 
author just quoted (page 17): "The force and 
effect of circumstantial evidence depend upon 
its incompatibility with, and incapability of, ex- 
planation or solution upon any Mber supposi- 
tion than that of the truth of the fact which it is 
adduced to prove.'" 

1 Oreenleaf on Evidence, t 13, speaking of 
proof by drcomstantlal evidence, says : 

"And from these facts, if unexplained by the 
prisoner, the jury may or may not deduce or 
infer or presume his guilt according as they 
are satisfied or not of the natural connection 
between similar facts and the guilt of the per- 
son thus connected with them." 

In speaking of the proof required and what 
the jury must find In a case similar to this, 
the court, in Lead Co. t. Railroad, 123 Mo. 
App. 394, 402, 101 S. W. 636, 638, said: 

"That evidence showing no more than a prob- 
ability that the source of a fire was a raim>ad 
engine is sufficient to submit to the jury was 
decided, In effect, in Campbell v. Railroad, su- 
pra; Sheldon v. Railroad. 14 N. Y. 22.3 [67 
Am. Dec. 155]; FHeld v. Railroad, 32 N. Y. 
339; Railroad v. Richardson, 91 U. S. 470 [23 
L. Ed. 356] ; Smith v. Railroad, 63 N. H. 25 ; 
and numerous other cases. But, of course, the 
probative force of the evidence must be strong 
enough to induce a belief in the minds of the 
jury that the fire in fact originated from a loco- 
motive, not merely that it miglit have done so. 
The evidence ought to warrant more than a con- 
jecture as to the source of the fire — ought to suf- 
fice to induce a conclusion regarding the mat' 
ter in the minds of reasonable men." 

And in the same case the court comment- 
ed favorably on an instruction to the effect: 

That a verdict "could not be found for plaintiff 
on a mere conjecture as to the cause of the fire, 
hut the jury mviBt find that it was communicat- 
ed by an engine on defendants' road while pass- 
ing Irondale, and the burden of proving this 
fact by the greater weight of the evidence was 
on the plaintiff; that the evidence to prove 
the origin of the fire was purely circumstantial, 
and, if the jury found the circumstances were 
more consistent with the theory that it caught 
from some other source than defendant's engines 



r litized 



j by Google 3 



90 



187 SOUTH'WUaiBBN BBPOBTSOt 



(Mo. 



than with the th«oi7 tiiat it was commjinicated 
by an engine, the Terdiet shovild b« for defend- 
ant" 

The last Instrnctlan mentioned* by the 
court was glren for defendants, and It would 
be entirely proper to give on defendants' be- 
half a cautionary Instruction, as was done 
In that case, that there should not be a find- 
ing for plaintiff unless the evidence showed 
that the engine was the most probable cause 
of the fire, or to the effect that before plain- 
tiff could recover he must prove that the 
fire was more probably caused by the engine 
than by any other cause. These, however, 
are cantionary Instructions In defendants' 
favor. For the plaintiffs, on whom la the 
burden of proof, the instructions should re- 
quire a positive finding that the defendants' 
engine set on fire the plaintiffs' mllL A mere 
finding that sndi cause Is more probable 
than any other is not sufficient to fix liabil- 
ity. The objection to and danger in prov- 
ing a fact by circumstantial evidence is that 
it is based on deductions from other facts, 
and that, all the facts not being known, a 
wrong conclusion Is possible, if not probable. 
It would render proof by such evidence far 
more dangerous to not require the Jury to 
make a finding that the ultimate fact is true, 
but only that such is more prabable than 
anything else. 

For the reasons given, the cause is revers- 
ed and remanded. 

FARBINQTON, J., concurs. ROBERT- 
SON, P. J., is of the opinion that the instruc- 
tion is not erroneous, but concurs In the re- 
sult, as stated in the opinion. 



BOXKEN V. SHARP. (No. 11985.) 

(Kansas City Court of Appeals. Missouri. 

May 22, 1&16. Rehearing Denied 

June 12, 1916.) 

1. JUDOUENT ®=»735— Res Judicata. 

Judgment for plaintiff in proceedings by an 
administratcr in the probate court under the 
statute for the discovery of assets, in which he 
charged that defendant had in her possession 
and was concealing property belon^ng to the 
estate, was not res judicata in defendant's claim 
against decedent's estate for services, in which 
the claimant alleged that decedent, before dying, 
attempted to transfer the property which the 
administrator had retaken, but did not complete 
the transfer, so that it went into the hands of 
the administrator, since the first judgment was 
merely an adjudication that decedent did not 
transfer title. 

[Ed. Note.— For other cases, see Judgment, 
Cent. Dig. §| 1263, 1265; Dec. Dig. <S=»735.] 

2. JuDOMENT 4=3739 — Res Judicata. 

The principle of res judicata that one is 
bound by what he might and should have liti- 
gated in the first proceeding, though he did not 
do so in fact, does not apply to judgment in 
proceedings to discover assets so as to bar de- 
fendant in subsequent action to recover for 
services. 

[Ed, Note.— For other cases, see Judirment, 
Cent Dig. |S 1106, 1267; Dec. Dig. <S=»739.3 



Appeal firoa Circuit OooM, yemon Coun- 
ty ; B. a. Thnnnond, Judge; 

Claim by Lanra Boyken agnlnst I. O. 
Sharp, administrator. Fimn a Judgment al- 
lowing the claim, defoidant an>ealB. Judg- 
ment affirmed. 

J. M. Hull and M. T. January, both of Ne- 
vada, Mo., for appellant. W. M. Bowker and 
W. H. Hallett^ both of Nevada, Me., for re- 
spondent 

ELMSON, P. J. Plaintiff presented a 
claim in the probate court against the estate 
of Mary J. Cooper, deceased, for services ren- 
dered her, Including waiting upon her In her 
last sickness. The claim, amounting to $740, 
was allowed. The administrator appealed to 
the circuit court, where she again prevailed, 
and defendant has brought the case here. 

In the circuit court plaintiff filed an 
amended claim to which she attached an af- 
fidavit The amended paper alleged plaln- 
tilTs services whereby deceased in her life- 
time became Indebted to her in the sum of 
$740.' She further alleged that deceased was 
the owner of certain personal property at 
her death, consisting of certificates of deposit 
In certain banks amounting to $740, and that 
deceased promised and agreed to give her In 
payment of her services whatever personal 
property she had at her death; that deceas- 
ed before dying attempted to transfer this 
property to plaintiff, "but did not complete 
the transfer, and said property went into the 
hands of the administrator. Wherefore claim- 
ant prays Judgment for said sum of $740, the 
amount due her." Defendant then filed a 
plea of res adjndicata and offered the record 
of the probate court to sustain it The trial 
court refused the offer, and that is the sole 
error assigned. 

The plea of res adjudlcata is that, on the 
death of Mary J. Cooper and the appoint- 
ment of the administrator, he Instituted a 
proceeding In the probate court, under the 
statute for the discovery of assets, In which 
proceeding he charged that plaintiff had In 
her possession and was concealing this same 
property which he alleged belonged to the es- 
tate. A citation was issued. Interrogatories 
propounded, and answers made. Plaintiff's 
answers to the interrogatories were a denial 
of having any property belonging to the es- 
tate. "But she admits that she has In her 
possession as her own pr(q;>erty certain evi- 
dence of debt turned over to the affiant by 
Mary J. Cooper, In her lifetime, and that the 
affiant is absolute owner of all of said per- 
sonal property, and that the estate of Mary 
J. Cooper has no right, title, or interest in 
the same; that said personal property con- 
sists of the items set forth in the interrog- 
atories 2, 3, and 4, filed by the administra- 
tor." The plea then further alleged a Judg- 
ment against plaintiff for the property by the 



^le 



$=>For other ctaM kea same tople «nd KVT-tlUUBBR In all Sar-Nuubtrad UtkMta and ladexea" 



Uo.) 



PXKJKETT V. HATNES 



91 



probate eoart and that no appeal was taken 
by her. 

[1] We tUnk It clear tbat the piooeedings 
and judgment In the probate coort vete not res 
adjedlcata. Tbat Judgment merdy amoont- 
ed to an adjudication that Mary Ciooper did 
not transfer the title to the property to 
plaintiff, and that it was property, the title 
to which was in the estate ; while the present 
demand is based on a claim tar services for 
which Mary Cooper was to pay by transfer- 
ring the property to plaintiff, but which she 
laHed to do, wherefore she, or rather the es- 
tate, owes her the value of the property. In 
the first the property itself was sought In 
the latter claim, a judgment is asked in a 
wrtaln sum, measured by the value of the 
pr(q)erty, it is true, but which must be real- 
ized upon as any other like demand against 
the estate. 

While counsel have not dted a case with 
like facts, they have referred us to several 
which determine the rule to be followed in 
ascertaining whether one adjudication bars 
another. Womach v. St Joseph, 201 Ho. 
467, 476, 100 S. W. 443, 10 L. R. A. (N. S.) 
140; Frltsch Foundry v. Goodwin, 100 Mo. 
App. 414, 74 8. W. 136; RusseU v. Place, 04 
U. S. 606, 24 U Ed. 214. 

[2] Defendant has called our attention to 
the rule that in applying the principle of res 
adjudicata one is bound by what he might 
and should have litigated in the first pro- 
ceeding, even though he did not do so in 
fact That rule does not affect this case, for 
here plaintiff could not have litigated in the 
first proceeding the cause of action she now 
asserts. 

The Judgment must be affirmed. All con- 
cor. 



PUOKETT V. HAYNBS et aL (No. 1699.) 

(Springfield Court ot Appeals. Missouri. May 
25, 1016l Rehearing Denied June 24, 1916.) 

1. Mastkk and Sebvawt «=»285(5)— Ihjubiks 
TO SrsvANT— Question fob Jubt. 

In a servant's acti<Mi for injuries caused by 
file explosion of a stidt of dynamite given to 
plaintiS l^ a fellow servant after attempting 
to light IM fuse with a lantern which was 
blown out by die wind, whether the fuse was 
lighted when banded to plaintiS by reason of 
coming in contact with the blase of the lantern, 
or exploded without apparent cause, held for the 
jnry. 

[Ed. Note.— For other cases, see Master and 
Serrant, Cent Dig. | 1016; Dec Dig. «=» 
285(6).] 

2. Tbiai, «=>2C1(8)— iNSTBtronowa— Appijoa- 

noi* TO PLBAOINS. 

In a servant's action for Injuries caused by 
the explosion of a stick of dynamite given to 
plaintiff by a fellow servant, where the petition 
tnffidently alleged negligence, an instruction 
which reqnired the Jury to find on the ultimate 
fact of negligence without referring to the va- 
riooa elements constituting that negligence was 
not erroneous, since it is not necessary that any 
instmction l>e given on negligence, and general 



terms not misleading to the Jory amoont only 
to nondirection. 

fEd. Note.— For other cases, see Trial, Cent 
Dig. { 803 ; Dec. Dig. ®=3251(8).] 

3. Masteb and Seevant i3=>259(2)— Inottbies 

TO SEBVANT— PliEADING — PETITIOrf. 

In a servant's action for injuries caused by 
the explosion of a stick of dynamite given to 
plaintiff by a fellow servant, an allegation in 
the petition that the fellow servant was guilty 
of negligence in handing such stick of dynamite 
to plaintiff after having lighted the same, or 
placing the end of the fuse in contact with a 
ruse that could have lighted it without telling 

filaintiS that he had done so, was a sufficient al- 
egatlon of negligence. 

[Ed. Note.— For other cases, see Master and 
Servant Cent Dig. { 838; Dec. Dig. «=> 
289(2).] 

4. Masteb and Servant <&=3279(6)— Injttbies 
TO Servant— Sufficiency of bvidbncb— 

NKOLlaBNCK OF FELLOW SEBVANT. 

In a servant's action for injuries caused by 
the explosion of a stick of dynamite given to 
plaintiff by a fellow servant after attempting 
to light the fuse with a lantern which was blown 
out by the wind, evidence held suffident to sus- 
tain a jury fiudmg that the feUow servant was 
negligent 

[Ed. Note. — For oHier cases, see Master and 
Servant Cent Dig. S 979; Dee. Dig. «=» 
279(6).] 

Stuigis, J., dissenting. 

Appeal from Circuit Court, Barton Coun- 
ty ; B. G. Thunuan, Judge. 

Action by W. F. Puckett against Jonathan 
Haynes and others. Judgment for plaintiff, 
and defendants appeal. Affirmed. 

B. M. Sheppard, of Joplln, and J. P. Mc- 
Oammon, of St Iiouis, for appeUants. B. 
W. Tinunonds, of Ivamar, and W. M, Bowker, 
Ot Nevada, Mo., for respondent 

ROBERTSON, P. J. Plaintiff lost his right 
arm below thie elbow as the result of an ex- 
plosion of a stick of dynamite while he was 
working in defendants' coal mlna In this 
action to recover damages for said injury he 
obtained a verdict for ?1,500, and from the 
Judgment entered thereon, defendants have 
appealed. 

The negligence alleged is that of a fellow 
servant, and is goveraed by our fellow serv- 
ant act Plaintiff and defendant Hockman, 
plaintiff's fellow servant, were working at 
night Plaintiff had drUled a hrte through 
a layer of coal for the purpose of dropping 
the dynamite therein after the cap and 12 
or 18 Inches of fuse were connected with the 
dynamite and the fuse lighted. Hockman 
got the dynamite, put the cap on the fuse 
and in the dynamite, and asked plaintiff for 
a match. Plaintiff told him that he had 
none, when Hockman remarked that he 
would have to light the fuse with a lantern, 
which he thereupon picked up. Plaintiff at 
the same time turned to pick up some tools. 
It was dark and rainy, and the wind was 
blowing. When Hockman raised the globe 
ot his lantern the wind blew out the light 
All this occurred evidently In the regular and 



Cuon DC given wa ncguijciiwj, aiiu Kvnenti ^i* uaaxo w^^«**^— w,.^^....-., a . ^.^^ 

«=»F«>r •(&«»«•«•■ MS wm* topis koA KBT-NUUBBQ Ui »ll Kei-Numb«r«dJ?l«8»U »nd,InA^»^^^ by VjOOQ IC 



92 



187 SOUTHWKSTBRN OBPORTEa 



Oio. 



contlnnenu cotirae of the eyents we bave Just 
narrated. When the light went out Hock- 
man handed the dynamite to plaintiff and 
told him to take It, and he (Hockman) would 
go and get some matches. Hockman then 
went to a steam shovel about 20 feet away. 
What further took place is related by plain- 
tiff as follows: 

"I took the stick of dynamite and held it for 
a minute or so; then I laid my shovel down to 
lay on the fuse, and started to lay the dynamite 
on it, when it went off in my band." 

The fuse had a powder core wrapped with 
a cord, some of which is coated with tar, 
and some with a waterproof composition. 

[1, J] The Instruction complained of by de- 
fendants referred to the testimony as to 
what occurred prior to when Hockman un- 
dertook to light the fuse by the use of his 
lantern, and then tells the Jury that, if "he 
started to light the same in his lantern, and 
carelessly and negligently exposed the same 
to the blaze therein, and then said to the 
plaintiff that bis lantern had gone out, and 
that he would hare to go to the engine to 
get some matches to light the same, and 
handed the stick of dynamite to the plain- 
tiff, and carelessly and negligently asked him 
to hold the same until he returned, and that 
plaintiff had no knowledge of the fact that 
said stick of dynamite had been exposed to 
the fire in said lantern, and was not noti- 
fied by the defendant Hockman of that 
fact, and that while in the act of putting 
it down the same exploded by reason of 
having been exposed to said fire," etc., then 
the verdict should be for plaintiff. One 
of the defects in this Instruction is said to 
be the omission of the requirement of the 
jury to find that Hockman knew, or by the 
exercise of ordinary care could have known, 
that the fuse was lighted when he handed it 
to plaintiff. Along with this contention It is 
stated in the brief filed here in behalf of de- 
fendants that: 

"The direct and positive evidence of the plain- 
tiff and of the defendant Hodcman la to the 
effect that there was not anything about the 
fuse which would indicate or suggest that it had 
come in contact with the blaze of the lantern 
and was burning." 

lliis does not qnlte pnt this question in the 
proper way. Both plaintiff and Hockman 
testified that they did not notice that the 
fuse was lighted when it was handed to 
plaintiff, but in the face of this testimony we 
cannot hold as a matter of law that It was 
not lighted, because all of the circumstances 
must be taken into consideration in ascer- 
taining if the Jury may not have been justi- 
fied In finding that the fuse was lighted at 
that time, and that, had not Hockman been 
negligent, he would have known it The 
defendants' testimony Is to the effect that, 
when a fuse is lighted, it always sputters. 
One of their witnesses who had been engaged 
in the powder business for 27 years said he 
"had never known the time when you could 
light one of these fuses and have the fire come 
in contact with the powder In the fnse wlth- 



f>at it causing a spatter and flash." Anoth- 
er witness for defendants testified that he 
had worked in the mines and for a powder 
company handling powder all his life, and 
that "when you first light a fuse and the 
fire comes in contact with the powder core, 
you get a sputtering noise ; and also fumes, 
or smoke; you also get a flash and kind of 
hissing noise; that Is true of any kind of 
fuse; It happens in all of it; in aU diffeiv 
ent kinds of fuse I have used." These two 
witnesses testified that they had known of 
dynamite exploding without any apparent 
cause, but whether in this case it so explod- 
ed was for the Jury to decide. We think 
there was testimony from wlilch the Jury 
could have found that Hockman should have 
known the fuse was lighted by the blaze of 
the lantern. Considering the fact that the 
accident occurred at night when It was rain- 
ing and the wind blowing, and that the con- 
clusion Is Justified that the fuse was lighted 
by reason of coming in contact with the blaze 
of the lantern. It was then a Question for the 
Jury to determine whether or not Hodunan 
was guilty of negligence In banding the dy- 
namite to plaintiff, if the Jnry fonnd the 
fuse was lighted, and before the jnry could 
conclude that Hockman was negligent they 
must have found that he knew, or by the 
exercise of ordinary care conld have known, 
that the fuse was lighted. This brings us 
to the question of the sufficiency oiC the in- 
struction upon the objection urged against it 

The instruction, to which we have refer- 
red, in effect, required the Jury to find the 
ultimate fact of negligence on- the part of 
Hockman without referring to the rarions 
elements which constituted that negligence. 
In the case of Lannlng v. Chicago Great 
Western Ry. Co., 196 Mo. 647, 662, 04 S. W. 
491, where an engineer backed a locomoUve 
engine against cars and forced them onto 
plaintiff, the Ibstruction did not reqnlre the 
Jury to find that the engineer knew, or by 
the exercise of ordinary care could have 
known, of the dangerous' position of plain- 
tiff, yet It was said: 

"The jury were at liberty to consider his knowl- 
edee of the danger to plaintiff, even though it 
was not made a condition of plaintiff's recovery 
in the instruction. ^ Under the general allegation 
of negligence it wag entirely competent to prove 
such knowledge, and the iDBtmction was well 
enough in view of the evidence and the theory 
upon which both parties tried the caose." 

In behalf of the defendants in the case at 
bar the Jury was Instructed that the bnrden 
was on the plaintiff to prove "that plain- 
tiff's injuries were caused by the negligence 
of the defendant Hockman." Rippetoe y. 
Missouri, K. & T. R. Co., 188 Ma App. 402, 
407 and 408, 122 S. W. 314. No Instnictton 
was asked in behalf of defendants more 
specific than the one given for plaintiff. The 
defendants undertake to distinguish this case 
from the Lannlng Case, supra, on the ques- 
tion of the instruction, because It is sold in 
that case the allegation was In the petition 
that the engineer knew, or by tito exercise 



^le 



Mo.) 



PUCKBTT V. HA"rNB8 



98 



of ordinary care conid have known, of the 
dangeroas position of the plaintiff; but that 
pbsse of the case v/e will discuss later. 

In behalf of defendants some decisions are 
dted to sustain the propositloD that before 
defendants could be held liable Hockman 
must have known, or by the exercise of or- 
dinary care conId have known, that the fuse 
was lighted before he handed it to the plain- 
tiC, aud this proposition we coocede, and 
think that It needs no discussion. But, con- 
ceding that to be the law, it does not follow 
that an iDStmctlon which omits this Is de- 
fectlTe, because that Is simply an element 
that makes a certain act negligent It is 
not necessary that any instruction be given 
on the question of negligence (Wilson v. Kan- 
aas City Southern Ry. Co., 122 Mo. App. 677, 
673, 99 S. W. 266, and cases there cited; 
Ho<^[»er T. Metropolitan St By. Ck>., 125 Mo. 
App. 329, 332, 102 S. W. 58), so that when 
the general terms are used ordinarily, it 
' amounts to no more than a failure to in- 
struct When InstmctionB on negligence are 
given they must not be such as to mislead 
the Jury, but they may be so general as to 
not lead them all the way, and yet amount 
to only nondliectlon. Some confusion may 
be avoided in considering decisions on this 
question by bearing in mind that sometimes 
the facts themselves imply negligence as a 
matter of law (Prash v. Wabash R. Co., 151 
Ho. Ak>. 410, 415, 132 S. W. 67, and again 
others do not and must be found by the 
]ury to be negligent The instractlon la the 
case at bar cannot be pronounced fatally de- 
fective upon this point as it required a find- 
ing that the facts hypothetically submitted 
constituted negligence. 

It may well be argued that, if the Instruc- 
tion had contained the clause contended for 
In behalf of defendants, it would not have 
yet been fair to plaintiff. At the time Hock- 
man was undertaking to light the fuse with 
the lantern plaiutUTs attention was diverted 
elsewhere, and it may be argued that before 
Hockman banded him so dangerous a thing 
as dynamite he should have advised plaintiff 
of what he had undertaken to do, even 
though Hockman honestly believed it had not 
been exposed to the blaze therein, and given 
plaintiff an opportunity to take such pre- 
cautionary measures as he saw fit 

Again, it Is said the instruction is fatally 
defective because It is predicated on facts not 
proven In assuming that Hockman handed 
the dynamite to plaintiff and asked him to 
hold the same. They were engaged in pre- 
paring the shot for the hole plaintiff had 
drilled. They had tried to light the fuse 
with matches and failed. Hockman under- 
took to light it with his lantern, and it 
was blown out and plaintiff testified that 
Hockman then said, upon handing him the 
dynamite, "Take this and I will go get some 
matches." The conclusion from these facts 
may wcU be that Hockman did not hand the 
dynamite to plaintiff to throw down, as 



Hockman could as weH have done that It 
was raining, and likely Hockman did not 
wnnt it laid down so as to get wet 

[3] It is said that the Lannlng Case is dis- 
tinguishable, on the question of Instructions, 
from the case at bar, by reason of the allega- 
tions we have above noticed. We think that 
reference was made to the petition iu that 
decision solely for the purpose of disclosing 
that the facts which the jury were author- 
ized to consider under the instruction in that 
case were alleged in the petition, and in the 
case at bar we think the aUegations are suf- 
ficient to justify a finding of the negligence 
of Hockman. The allegation in the petition 
is, after stating what bad previously trans- 
pired, that: 

Hockman "was guilty of negligence in handing 
such stick of dynamite to the plaintiff after bav- 
iug lighted the same or placing end of said 
fuse in contact with a fuse that could have 
lighted It without telling this plaintiff that he 
had done so." 

So far as we are aware, it has always 
been held in this state that, when the facts 
involved are set forth and In general terms 
alleged to be negligent then the petition is 
sufficient HiU v. Mo. Pac. Ry. Co., 49 Ma 
App. 520, 631; Id., 121 Mo. 477, 26 S. W. 
576. 

It seems clear to us that under the allega- 
tions of the petition the defendants were 
duly notified of the facts they were required 
to meet, and that under the instructions the 
Jury unquestionably understood the issues in- 
volved. 

[4] In behalf of defendants it Is stated 
that there was an entire failure of proof 
of any negligence in this case, but from 
what we have heretofore stated we think it 
clear that this contention should not be up- 
held. Even if dynamite does sometimes ex- 
plode from causes unknown, yet In this case 
the facts and circumstances justified the con- 
clusion that the fuse was lighted by coming 
in contact with the blaze of the lantern. 
This fact being found, the defendants are 
met with their own testimony to the effect 
that when a fuse Is lighted It always gives 
visible (at night at least) and audible evi- 
dence of that fact; hence it was not a Case 
vyithout evidence on the question of Hock- 
man's negligence in not seeing or hearing it 

Having considered and discussed all of the 
questions raised in behalf of defendauts, and 
found them without .merit the judgment 
should be affirmed. 

It Is so ordered. 

FARRINGTON, J. (concurring). It seems 
to me that the question of whether Hock- 
man knew or bad reasonable cause to know 
that the fuse was lighted is unimportant 
under the facts of this case. That he knew 
what he had done that caused the fuse to 
light Is an undisputed fact and it was the 
failure to prudaatly act on that undisputed C^ ^-^^-^^i^ry 
knowledge that constitutes his negliaenoe. )y V^OOQLC 



94 



187 SOUTHWBSTEiRN BBPOBTESt 



(Uo. 



The diarge of negUsence In Uie petition is 
as follows : 

"Plaintiff sajrs that Hockman, the fellow sery- 
ant of this pUantiff, was guilty of negligence in 
handing eatm stick of dynamite to this plaintiff 
after having lighted the same or placing the end 
of said fuse in contact with a fire that could 
have lighted it without telUnc this plaintiff that 
he had done so. • • • " 

Defendants accepted this charge as a good 
ground of negligence, ofCerlng no demurrer, 
but filing an answer setting up assumption of 
risk and contributory negligence. The In- 
struction complained of is as broad as the 
charge In the petition. 

The jury, on evidence to support it, has 
found that Hockman pat the fuse into the 
flame of the lantern or so close thereto as to 
ignite it, and that it, being so lighted, caus- 
ed the explosion which injured the plain ttlf. 
Hockman handled not only the fuse, but the 
lantern also, and is in law bound to know 
what he was doing because opportunity to 
know is the same as knowledge where there 
is a duty owing. Knowing that what he had 
done would or could cause the fuse to ignite, 
he had no right as an ordinarily prudent 
man if the jury so find to hand the stick of 
dynamite to the plaintiff, who was Ignorant 
of what Hockman had done without giving 
plaintiff warning of the conditions to which 
the fuse had been erposed. This was due to 
the plaintiff that he might exercise liis own 
Judgment about whether there was danger. 
The negligence charged, as I conceive it to 
be, is the act of Hockman in Iiandlng the 
stick of dynamite to plaintiff having full 
knowledge of the conditions to which the fuse 
had been subjected, without giving plaintiff 
the benefit of a knowledge of those condi- 
tions. 

I am for afi^mlng the judgment. 

STURQIS, J. (dissenting). The ground of 
my dissent in this case Is that the only negli- 
gence JustlQed by the evidence was neither 
alleged In the petition nor submitted to the 
Jury by the Instructions.' The majority opin- 
ion correctly states the law as follows: 

"Both plaintiff and Hockman testified that 
they did not notice that the fuse was lighted 
when it was handed to plaintiff, but in the face 
of this testimony we cannot hold as a matter of 
law that it was not lighted, because all the cir- 
cumstances must be taken into consideration in 
ascertaining; if the jury may not have been justi- 
fied in finding that the fuse was lighted at that 
time, and that had not Hockman been negUgent 
he would have known it. [Italics mine.] 
• • • In behalf of defendants some decisions 
are cited to sustain the proposition that before 
defendants could be held liable thnt Hockman 
must have known, or by the exercise of ordinary 
care cotild have known, that the fuse was lighted 
before he handed it to the plaintiff, and this 
proposition we concede, and think that it needs 
no discussion." 

Tbat plaintlfTs fellow workmEui who hand- 
ed him the stick of dynamite was not negli- 
gent if he did not know, or have reason to be- 
lieve, the fuse was lighted, and could not 
have known It by using due care, the only 
care th* law required of hixn, is perfectly 



obvlons. The veiy statement that be did not 
know the fuse was lighted and liad used due 
care in that respect negatives negligence; 
for, when a man uses due care he is not 
negUgent Tills the majority <v>inl<» c<m- 
cedes is the very heart of tlie case, and it is 
also conceded and obvious that tlie fellow 
servant's negligence In this respect is neither 
alleged in the petition nor a finding thereof 
required by the instmctlons. 

The only negligence alleged or snbmitted 
by the instructions is in the fellow servant 
trying to light the fuse at the lantern — ^"n^- 
ligently exposed the same to the blaze there- 
in" — and in negligently asking plaintiff to 
hold the stick of dynamite wlien plaintiff did 
not know it had been exposed to the fire in 
the lantern, and was not notified by the 
fellow servant of that fact There Is no 
pretense here that it was negllgenoe to try 
to light the fuse in the lantern, or tbat the 
fellow servant did it in a negUgent way, 
and that ground of negllgenoej tbout^ sub- 
mitted to the Jury, is witliont evidence to 
support it As to handing the dynamite to 
plaintiff vrlthout notifying him that the fuse 
had been exposed to the flra of the lantern, 
granting, of course, that plaintiff did not 
know this, as the Jury foood, negUgence of 
the fellow servant depends wholly on whether 
the fellow servant knew or by due care could 
have tcuown this f&ct himself; and so the 
majority opinion ooneedes. There was no 
negUgenoe in the fellow servant not notifying 
the plaintiff that he had tried to Ugfat the 
fuse at the lantern and that the lantern bad 
been blown ont in so doing; for plaintiff 
knew this as weU aa Ills coworkman. The 
plaintiff testified: 

"He came back witli the dynamite and lantern 
and asked me for a match to light the fuse. I 
told him I didn't have a match, and he said, 'I 
will have to li^t it with the lantern.' He 
reached down and picked np his lantern. I 
turned around to piqk up the tools, and then the 
light went out of his lantern. He says, 'Take 
this [the dynamite] and I wUl go get some 
matches.' " 

This action was an assurance by the fellow 
servant that he thought, and honestly so, 
that the fuse bad not come in contact with 
the flame so as to be lighted. His act of 
handing him the fuse after the lantern was 
blown out by the wind spoke Just as loudly 
and definitely as words, and gave plaintiff 
Just as much information, taking Into con- 
sideration what the plaintiff observed him 
trying to do, as if he had said to him, "Hie 
wind blew the flame out before it touched 
and Ughted the fuse." His act was also an 
assurance that the fuse had not sputtered or 
given indication of being lighted. Why, 
then, should the court say the fellow work- 
man should have notified plaintiff when his 
acts gave all the information that words 
could have done? His opportunity for ob- 
servation on this point, however, was better 
than that of plaintiff, whose attention was 
distracted by other matters, and the whole -T/> 
question of negUgence turns on whether tbe ^ lC 



Uo.) 



WHTKIjBBIjACK ▼. orbat wxstbbk mfq. oo. 



$6 



fellow worimiui could, by exercising dne 
care, have known of the fuse being lighted, 
or was negligent In forming a belief that it 
was not lighted. The jury were permitted 
to find the defendants liable without being 
required to find any negligence In this re- 
spect—the only negligence possible in the 
case. It wiU not do to say that the cowork- 
men mnst be held to have known that the 
fnae was, in fact, lighted by the lantern, be- 
eaose the Jury have found that it was, and 
he had an opportunity to know. The Jury 
90 fbnnd because it exploded soon after, but 
the coworkman acted before the explosion. 
Hbidslgfat is often better than foresight. Op- 
portunity to know is negligence only when 
the person having the opportunity has failed 
to use tile same as a reasonably careful man 
should. Of course, one's opportunity to 
know a ftict, like any other issue, may at 
times be such as to be declared oa either way 
as a matter of law, but certainly is not so 
here. 

It will not do to say that the failure of Che 
fellow seivaat to use due care in ascertaining 
whether the fuse was lighted la only "an ele- 
ment that makes a certain act negligence" ; 
for it is the sine qua non of negligence tn 
this case. It is- an absolutely essential ele- 
ment of any negligence in this case, and no 
instruction defining and predicating negli- 
gence and authorizing a recovery thereon can 
be correct which does not require the Jury to 
find that which is essential to make negli- 
gence and without a finding of which thera 
Is no negligence. - 

And to my mind, when the court does un- 
dertake to instruct the Jury as to what con- 
stitutes negllgenoe permitting plaintiff to re- 
cover, such instruction must be correct, and 
not omit the essential element which alone 
makes an act negligence. It will not do to 
say that sucii Instruction is ^ood as far as it 
goes, thus implying that defendants could. If 
they desired, supply the omission by another 
Instruction. It is fundamental that plaintiff 
must allege and prove the things whldi are 
essential to his case, and the jury must find 
the same to be true, and it is just as logical 
to say that the proof Is good as far as it 
goes as an instruction, when same relates to 
the essentials of plaintiff's right to recover. 
The omission of an essential element going 
to make plaintiff's case. In an instruction au- 
thorizing a finding for plaintiff on the re- 
quirements contained In the instruction, is, 
in fiict, telling the jury that no such finding 
Is necessary. A different rule applies at 
times to matters of defense. 

This is not a case of the character where 
general allegations of negligence are permis- 
sible either In the petition or Instructions, 
and any reftetence to such principle is Inap- 
plicable. The principles of law here contend- 
ed for are so well known that no citation of 
authorities is deemed necessary. 

The case should be remanded for new trlil. 



WINBOLBBLACK v. GREAT WESTEBN 
MFG. OO. pJo. 11802.) 

(Kansas City Court of Appeals. Missouri. 

April 8, 1916. Rehearing Denied 

June 12, 1916.) 

1. Appkal and BbKob «=»909(1)— QtJESWOHB 
OP Fact— Vebwot. 

In a servant's action for peraonal injury, a 
verdict for him settled all controverted issues 
of fact in his favor. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. SI 3912-3916, 3917-3921; 
Dec. Dig. «=3999(1).] 

2. Mastee and Sebvant ®»5 — Relatiok — 
Servant of Independent Oontkactob. 

A teamster employed by a transfer com- 
pany, which alone had the right to discharge 
him, wbic-h aasi^ued him to the duty of driving 
a team which lus employer used exclusively for 
hauling freight for a manufacturing company 
at a stipulated price, and who was placed under 
the direction of the manufacturing company, 
and by it was placed under the direct contrM 
of its shipping clerk who required him to assist 
in loading freight in the warehouse and truck- 
ing it to the wagon, stood in the relation of a 
servant to the manufacturing company and was 
entitled to have it exercise reasonable care to 
furnish him a reasonably safe place to work; 
so that for injury resulting from a failure to 
do so the manufacturing company was liable. 
[Ed. Note. — For other coses, see Master and 
Servant, Cent Dig. { 5 ; Dec. Dig. <8=»5.] 

3. MABisa AND Sebvant <&=s>5— Relation— 
Sebvakt of Independent Contbactob. 

As a general rule, the relation of master 

and ser^-ant does not exist between an employer 

and the servant of an independent contractor. 

[Ed. Note.— For other cases, see Master and 

Servant, Cent. Dig. { B ; Dec. Dig. «=»5.] 

4. Neouobnck <S=>119(7)— Pboo»— Vabiancb. 

Where the plaintiff specifies in his petition, 
he must be held to his specification and cannot 
recover on proof of a difCerent statement of 
facts, and, where the petition contains a gen- 
eral statement of neghgence, followed by the 
averment of specific facts of the alleged negli- 
gence, the plaintiff wUl be confined to a recov- 
ery upon the specific facts. 

[Ed. Note.— For other cases, see Negligence, 
Cent Dig. §1 212-216; Dec. Dig. ©=119(7).] 

5. Master and Servant <s=>264(4) — Action 

rOH INJUBY— PLKADIKO — EVIDENCE. 

In an action for injury to a teamster, a 
petition, alleging that defendant permitted the 
floor or a loading platform and the floor of its 
•warehouse near the doorway over whjch plain- 
tiff ran a loaded truck, to be and remain de- 
pressed and worn and the wood of the floor of 
the dock and of the warehouse to be in a de- 
fective and worn-out condition, with a hole or 
holes therein, into which the wheel of the truck 
dropped at the time of his injury, the locus of 
the nole was not precisely defined, and there- 
under plaintiff might show that it was just over 
the line in the dock platform. 

[Eld. Note. — For other cases, see Master and 
iServant. Cent. Dig. S 865; Dec. Dig. <S=» 
264(4).] 

6. Masteb and Sebvant ©=3208(1) — Sajv 
Place to Wobk— AsatriiPTioN of Risk. 

A servant does not assume the risk of in- 
Jury caused by the master's negligence in failing 
to exerdse reasonable care to furnish him a 
reasonably safe place to work. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent. Dig. { 651; Dec. Dig. «=» 

,_ _ _^ , . i ii nitiTon o y 



^=»Por oth«r case* tee aazne tolpic and KEY-KUM6BR in all Key-Numbered DlffesU and Ii»lex«B 



Google 



M 



187 SOniHWBSTSaN BJCFORTSOl 



(Mo. 



7. Hasteb and Servant «=>280(15)— Action 
FOB iNJUBT — Question fob Juby — Cok- 
TBtBUTORY Negligence. 

In a teamster's action for personal injury 
when the wheel of a truck fcU into a hcJe in the 
floor, evidence held to make his contributory 
negligfuce a question for the jury. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent. Dig. | 1106; Dec. Dig. «=> 
2S9(15).i 

8. Appeal and Ebbob «=»409(1)— Remabks 
OF CouNBEL— Necessity of Objection and 
Exception. 

Objection to the remarks of counsel in his 
argument could not be considered, where the 
record did not show that objection was made at 
the time of the remarks or that an exception 
was taken to the ruling of the court thereon. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. S 2295 ; Dec. Dig. <3=>499(1).] 

9. Dahaoeb <S=>30— Pebsonal Injttby— Ele- 
ments OF Dauaqeb. 

In a servant's action for injury to Us foot, 
the loss of time while it was healing, the pain 
and suffering, past and future, and the humilia- 
tion of being crippled, were elements for which 
he was entitled to recover reasonable compensa- 
tion. 

[Ed. Note.— For other cases, see Damages, 
Cent Dig. S 222 ; Dec. Dig. «S=>30.] 

10. Damaobs <S=»182(7)— Pebsonal InjubT— 
ExoKSSivB Damages— Injdky to Foot. 

A verdict of $5,000 for injury to a teamster 
54 years of age earning $10.50 per week, where- 
by certain bones of a foot were broken but 
healed as well as could be expected in one of iiis 
oge, making him unable to work for about four 
months, and leaving a permanent flat foot and 
a limp, and a liability to some pain and incon- 
venience, where he obtained employment at pay 
not materially reducing his earning capacity, 
was excessive, and would not be sustained with- 
out a remittitur of $2,000. 

(Ed. Note. — For other cases, see Damages, 
Cent. Dig. S S78; Dec. Dig. «S=»132(7).] 

Appeal from Circuit Court, Jackson Coun- 
ty; I. N. Watson, Special Judge. 

"Not to be ofllciaUyv)ubllshed." 

Action by James W. Winkleblack against 
the Great Western Manufacturing Company 
and the Newby Transfer & storage Company. 
Dismissed as to the Transfer Company, and 
Judgment for plalntlflf against the Great 
Western Manufacturing Company, and it ap- 
peals. Affirmed on condition that plaintiff 
file a remittitur of $2,000; otherwise, revers- 
ed, and cause remanded. 

Wm. W. Hooper, of Leavenworth, Kan., 
and Griffin & Orr, of Kansas City, for appel- 
lant. T. J. Madden and B. C. Whltesltt, 
both of Kansas City, for respondent. 

JOHNSON, J. Plaintiff, a teamster, sued 
the Newby Transfer & Storage Company and 
the Great Western Manufacturing Company 
to recover damages for personal injuries he 
alleged were caused by negligence of the de- 
fendants, his employers, In falling to exei^- 
dse reasonable care to furnish him a reason- 
ably safe place in which to work and with 
reascmably safe appliances. The answer of 
each defendant was a general denial and 
pleas of assumed risk and contributory neg- 
ligence. At the close of plaintiff's evidence. 



the court sustained a peremptory Instruction 
asked by the transfer cotapany, but over- 
ruled a similar instruction aslced by tbe 
Great Western Company, and thereafter the 
trial proceeded against tbe latter defendant 
alone. The verdict and Judgment were for 
plaintiff in the sum of $5,000, and defend- 
ant appeah3d. 

Plaintiff bad been employed by the trans- 
fer company many years as a teamster, and 
for a l«ng time bad beesk assigned to tbe 
duty of driving a team and wagon which his 
employer used excdusively for hauling freight 
for the Great Western Company. The trans- 
fer company charged the Great Western Com- 
pany a stipulated price for such service and 
employed and paid plaintiff, who therefore 
was the servant of the transfer oompaiiy. 
Plaintiff testified that as such teamster his 
duty should have been to receive loads to be 
hauled at his .wagon, but that his employer 
directed him to obey the orders of the Great 
Western Company, and that he had been 
required frequently by the foreman or ship- 
ping clerk of the latter company to assist in 
trucking heavy articles from Its warehouse 
to the wagon. There was a loading dock at 
the rear of tbe warehouse the platform of 
which practically was on a level with the 
floor, and the petition alleges that the boards 
of the platform and floor at and near tbe 
doorway were decayed and in a dangerous 
condition. 

On the occasion In question, plaintiff, the 
shipping clerk, and another employ^ of the 
Great Western Company, drove to the ware- 
house to load some iron shafting Into tbe 
wagon for transportation and delivery to a 
customer. Arriving at the warehouse, they 
loaded a shaft Ifi feet long and weighing 
about 350 pounds lengthwise on a two-wheel 
truck, and plaintiff, moving backward, pro- 
ceeded to pull the truck and load from in- 
side the wareliouse through the doorway on- 
to the dock and thence to the wagon. The 
surface of the floor and dock was rough and 
somewhat uneven, and he was compelled to 
exercise care to keep the shaft from rolling 
off the truck. While thus employed, one of 
the wheels dropped into a hole near the dooic- 
way, tbe truck shifted, and the shaft rolled 
off and fell on bis foot, severely and perma- 
nently Injuring it. Plaintlfl testified: 

"I had to pull kind of hard on account of the 
floor l>einB kind of rough and on account of 
going backwards and puUiug. I got to the door 
just by the doorway, the dock was rough, and 
llie truck frame did jiggle and turn the shaft- 
ing and make it uneven on the dock, and in try- 
ing to right it I went into tbe hole, as I came 
out into the door. I didn't see the hole. I 
was going backward and I didn't see the hole. 
The truck in coming out and running sideways 
run into that hole and started to turn, and 
turned the truck over, and the shafting, fell on 
my foot That was right in the doorway. That 
was a hole broken through there at the time 
by the truck falling into that worn place. It 
was rotten, and the track hrcikt th« hole— th» 
truck wheel The wheel did not go clean down. 



$=sFor otjiai' cases aes same tople and KSY-NUMBBB in all Kejr-N umbered Qlgests axid IndezM 



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WINKIiBBtiACK ▼. (3KBA.T WESTBBK MFO. CO. 



97 



tot it broke the place through so the 'wi>«et 
•tuck in the place and it turnM the truck up." 

It appears from the evidence of plaintiff 
tliat the bole was In the dock platform at 
the doorway and not in the floor of the 
bnllding; that plaintiff knew the floor and 
platform were in a defective condition and 
had complained about them to the shipping 
derk, bat did not knaw they were so defect 
tire as to threaten him with imminent dan- 
ger ; and that in moring the truck he obeyed 
tlie order of the shipping clerk, who was 
tlie foreman in charge of the work of load- 
ing the shafting. 

The evidence of defendant contradicts that 
of plaintiff in many vital particulars. The 
shipping clerk described the floor and dock 
as being sound but rough along the course 
followed by the truck, though there were 
some rotten places at the sides which were 
some distance from the course through the 
doorway. There was a knot hole Just out- 
side the doorway, but It was not large enough 
to have disturbed the equilibrium of the 
truck If a wheel passed over it He denied 
tliat be ordered plaintiff to move the truck, 
and says that, after he and bis helper had 
placed the shaft on the truck and had turned 
to some otber task, plaintiff voluntarily un- 
dertook to pull the truck out to the wagon. 
Defendant's evidence tends to show that, un- 
der the terms of its arrangement with the 
transfer company, plaintiff was to receive 
all loads at the wagon, was to do no work in 
the warehouse, had never been ordered to 
do such work, and that the shipping clerk 
was not a foreman nor authorized to enlist 
plaintiff In the service of defendant. 

[1] The verdict for plaintiff settled all con- 
troverted issues of fact in bla favor and, find- 
ing substantial evidentiary support for his 
contention that he was placed by his employ- 
er onder the control and direction of defend- 
ant, under a general order to do whatever 
defendant ordered him to do, and that de- 
fendant, in turn, had placed him under the 
direct control of the shipping clerk, who fol- 
lowed the practice of having him assist in 
the work of loading freight in the warehouse 
and tmchLing It to the wagon, we must as- 
soffle, for the purposes of the demurrer to 
tlie evidence, that such was the nature of 
bU employment and of the duties his master 
compelled him to i>erform for defendant 
Bat counsel for defendant argue that these 
facts do not disclose that plaintiff was the 
Krrant of defendant in the work of mov- 
ing the truck and that, since the petition 
alleges a cause of action founded on a breach 
of duty defendant owed plaintiff as its serv- 
ant, there Is a variance between allegation 
tod proof which should preclude a recovery 
in this action. Much of counsel's brief and 
trgnment on this branch of the case is bot- 
tomed on defendant's version of the facts 
which the Jury rejected. 

(2, 3] We need not discuss the case from the 
Tlewpoint that plaintiff was a mere volunteer 
187 S.W.— 7 



in movlog the tmclr and therefore, at best, 
was no more than a licensee of defendant, 
since bis evidence shows and the Jury found 
that he was in the actual performance of du- 
ties of his employment imposed upon htm by 
bis master, the transfer company. He was 
hired and paid by the transfer company, 
which alone luid a right to discbarge him, 
but that company, according to the testi- 
mony of its president, "hired this team to 
them (defendant) by the year, and the team 
reported to them every morning for their in- 
structions. • • • When he (plaintiff) 
went there he was entirely under their con- 
trol. W!e didn't even pay any attention. in 
any way, shape, or fom after we sent him 
there of a morning." Under such agreement 
and practice, defendant certainly assumed 
towards plaintiff, with respect to the carry- 
ing out of orders given pursuant to the ex- 
ercise of the rights of mastership over 
him, the rec^rocal duty to exercise rea- 
sonable care to furnish him a reasonably 
safe place In which to work. As a gen- 
eral rule, the relation of master and serv- 
ant does not exist between an employer 
and the servants of an Independent contrac- 
tor; but, where thd employer assumes con- 
trol over such servant and the work perform- 
ed by him, the relation of master and serv- 
ant exists, and the employer will be held 
liable to the servant for the Injurious conse- 
quences to him of a negligent breach of the 
most primary duty of mastership, as well 
as for injuries to others inflicted by the neg- 
ligent acts of the servant in the discharge 
of his employment. 26 Cyc. 970, 971 ; 1 L.a- 
batt on Master & Servant (2d Ed.) 56, 60. 

The idea that an employer may hire and 
assume complete control over the servant of 
an independent contractor, and yet not owe 
him the same duty he would owe a servant 
of his own, is without the support of either 
reason or authority. The right to control 
plaintiff — to order him to wheel the load out 
of the warehouse — made plaintiff defendant's 
servant in the performance of that task. 
He was neither trespasser, licensee, Aor in- 
vitee, but a servant entitled to the protection 
of a reasonable performance by defendant of 
a master's duty towards him. There is no 
variance between allegation and proof re- 
lating to the status of plaintiff with defend- 
ant 

[4, 5] Counsel for defendant argue, further, 
that there is a variance between essential 
spedflcations In the petition and the proof 
with respect to the place of the defect, and 
therefore that a recovery was allowed on a 
cause not pleaded. The precise point is that 
the petition placed the hole in the floor of 
the warehouse, at the doorway, while the 
proof of plaintiff placed it in the dock plat- 
form, Just over the dividing line between the 
floor and platform. 

The rule is well settled that, where tlie 
plaintiff specifies in his petition, he must 
held to bis specifications and cannot 



fe tue 

"bJai!oy Google 



98 



187 SOUTHWB9rE2BN BEPORTEat 



(Uo. 



lowed to re<!orer on proof of a dUTerent state 
of facta — this Is, on tbe theory that the de- 
fendant when called upon to meet proof ot 
certain specified facts must not be confront- 
ed at the trial with the burden of meeting 
proof of something entirely different — and 
the farther rale is Just as well settled that, 
where the petition contains a general state- 
ment of negligence followed by the averment 
of the speciac facts of the alleged negligence, 
the plaintiff will be confined to a recovery 
upon the specific facts. Thompson v. Livery 
Co., 214 Mo. 487, 118 S. W. 1128. 

Turning to the petition, we find' upon an 
analysis of all Its expressloils defining the 
negligent act which, of course, must be read 
together, that they leave the precise locns 
of the hole uncertainly defined, doubtless for 
the purpose of enabling plaintiff to recover 
on proof that it was on either side of the 
dividing line between the warehouse floor 
and dock platform. The charge of negli- 
gence is that: 

"Defendants allowed and permitted said floor 
of said loodiag dock or platform and the floor 
of said warehouse near said doorway over which 
plaintiff ran said truck in the doing of said 
work to be and remain depressed, worn, rough, 
and uneven, and the wood composing floor of 
said dock and the floor of said warehouse at 
said point to be and remain in a soft or rotten 
and defective and worn-out condition, and with 
a hole or holes therein into which the wheel of 
said truck dropped at the time of plaintitTs 
injury, thereby rendering same unsafe and dan- 
gerous." 

In the preceding description of the way 
In which the Injury occurred, language was 
used which might be understood to indicate 
the location of the hole as being In the floor ; 
but the charge of negligence we have quoted 
left its place uncertain and clearly advised 
defendant to prepare to meet proof that it 
was on one side or the other of the doorway. 
Defendant did not file a motion to make the 
petition more definite and certain, but ac- 
cepted It as sufficient, and the proof that the 
hole was just over the line in the dock plat- 
form was within the scope of the specifica- 
tions. 

[8, 7] The defense of assumed risk may be 
disposed of with the observation that plain- 
tiff did not, and could not, assume the risk 
of Injury caused by negligence of defendant 
In failing to exercise reasonable care to fur- 
nish him a reasonably safe place In which to 
work, and, since his proof tends to show 
that such negligence was the cause of his 
injury, the defense of assumed risk could 
not be regarded as established in law. Nor 
would we be warranted in holding that 
plaintiff was guilty In law of contributory 
negligence. Though he knew that the course 
he would be compelled to travel was In bad 
repair and was dangerous, his position 
that he did not and could not know that 
it was so dangerous as to threaten blm with 
imminent risk of Injury cannot be declared 
unreasonable, and, considering that his at- 
tention was centered on the task of keeping 
the shaft iu place, we cannot say that he 



should have discovered and arotded' the 'bole. ' 
His conduct presents Issues ot fact wblcli 
the court properly sent to tbe Jury for soln- 
tlon. The court did not err in overruling 
the demurrer to the evidence. 

Instruction A given at the request of plain- 
tiff is criticized on the grounds that It is too 
long and verbose and assumes that plaintiff 
was the servant of defendant. Counsel do not 
point out, nor have we been able to discover, 
any unnecessary fact Included in the hypoth- 
esis on which a verdict was directed; nor 
do we find any repetitious or confused or 
misleading phrasing of the elements of tbe 
hypothesis. The Instruction was long, but 
necessarily so. The second criticism bas 
been sufficiently answered in what we have 
said In the discussion of the relationship be- 
tween plaintiff and defendant Other criti- 
cisms of this Instruction are passed with the 
comment that they are not well grounded. 

H] Objections to certain remarks of coun- 
sel for plaintiff in his argument to the jary 
are urged, but cannot be considered, since 
the record falls to show that objections were 
made at the time of the remarks, or to aticm 
the taking of exceptions to tbe rulings of 
the court on such objections. 

[9,10] The point of an excessive verdict 
seems to be well taken. Plaintiff was 54 
years old at the time of his Injury and was 
earning fl0.50 per week. Certain bones In 
his foot were broken, but the fracture healed 
as well as could be expected In a person of 
his age. His foot was kept in a plaster cast 
until it healed, and he was unable to work 
for about four months. He has a flat foot, 
and this condition will be permanent, and he 
will always limp In walking and, of course, 
will "favor" that foot and will snffer some 
pain and Inconvenience. He is now employed 
by a railroad company as a flagman at $40 
per month and is able to do that kind of 
work. He incurred no expense for surgical 
and medical treatment, and his earning ca- 
pacity has not been diminished to any ap- 
preciable pecuniary extent, though, of course, 
he could not engage in some employments 
that he could follow If he had not been in- 
jured. Loss of time while his foot was heal- 
ing, pain and suffering, past and to come, 
and the humiliation of being crippled, are 
the elements for which he is entitled to re- 
cover reasonable compensation. Measured 
by the standard employed by the Supreme 
and Appeal Courts in measuring damages in 
I)ersonal Injury cases to ascertain whether 
or not the verdict transcended reasonable 
bounds, we think the verdict Is excessive, 
and that the Judgment should be reduced to 
$3,000, and we require plaintiff, as a condi- 
tion for the affirmance of the Judgment, to 
enter a remittitur of ?2,000. | 

Counsel for plaintiff make the point that 
the bill of exceptions was not properly au- 
thenticated, but there is no merit In it, and 
we shall not discuss it. 

On condition that within 10 days from 



ana : 

thdgle 



Moj 



OOMMEBOIAIi BA17K T. AMSBSOAJT SCMDINOh 00. 



W 



SOag of tbto oplatoD plaintiff shall file a re- 
mlttltnr o< fZfiOO, tbe Judgment will be af- 
flrmed; otherwise, it will be reversed and 
tbe caoae remanded. It la so ordered. All 
ooDcor. 



COMMERCIAI. BANE v. AMERICAN 

BONDING CO, (No. 1765.) 

(SptinKfield Court of Appeals. Missouri. May 

25, 191& Behearing Denied June 24, 1916.) 

1. Appiai. aro Ebbob «=al018 — Rkvuw — 

ReFEBEB'S FISDINO— CONCLBSlVBNESa 

A referee's finding on the issues, supported 
•7 the evidence, is coaclusive on such issues in 
tb« Court of Appeals. 

[Ed. Note. — For otjier cases, see Appeal and 
Error. Cent Dig. {{ 4006, 4007; Dec Dig. «=» 

2. Insxibawce «=9250(1) — Fidelitt Insub- 
ANCE— Statute. 

Rev. St 1909, t 7024, relating to the con- 
rtniction of warranties of fact, secaon 7026, for- 
Iridding the evasion of provisions relating to war- 
MDties, etc., and section 6937, providing that 
no misrepresentation made in obtaining a policy 
of life insurance shall be deemed material to ren- 
der the poUcy void unless the representation 
ihall have actually contributed to the continKen- 
cj on which it is payable, do not cover fidelity 
bonds. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dig. | 689; Dec. Dig. «=3250(1).] 

3. INBITBARCE «=!9267— CONTRACT— WaBRANTT. 

A warranty is a parcel of the contract and 
mast be absolutely tme, whether material to 
the risk or not 

[Ed. Note.— For other cases, see Insuranoe, 
Cent Dig. i 667; Dec. Dig. ®=»267.] 

4. iKsuKAHOB «=»146(1) — Renewal — Coh- 

STBDcnON or OOMTBACT. 

A renewal of a policy or bond constitutes a 
leparate and distinct contract for the period cov- 
ered thereby, and, where the renewal receipt re- 
cites a renewal in accordance with the terms of 
the bond, it is a contract with the same terms 
as evidenced by the bond renewed. 

[Ed. Note. — For other cases, see Insurance, 
Cent I>ii._« 276, 278-283. 287-291; Dec. 

5. IxsuBAKCE <S=»146(1)— Fidelitt Bowi>— Re- 
SBWALi— Wabkantibs. 

Ifae original warranties run through any re- 
newal of a fidelity bond, and the insurer, in case 
demand is made on it under the terms of the 
contract may show that any statements in the 
original application made for the bond were nn- 
trae; but this does not mean that such state- 
ments are promissory covenants or warranties 
vhicli will render the bond void if the conditions 
existing between tiie employ^ and tbe insured 
lure become changed. 

[Ed. Note. — For other cases, see Inanranee, 
Cent Dig. SI 276, 278-283, 287-291 ; Deo. Dig. 
«=145(I).] 

6. IssUBANCE «=»265 — Fideutt Bond — R»- 
KEWAi Receipt— Repbksentation. 

Where a bonding eompany, issuing a renewal 
Nceipt required the statement from the insured 
SMerting that tbe employ^ bad faithfully and 
honestly accounted for all moneys and property 
and always had sufficient securities on hand to 
bahutoe Ids aoeonnts, and' was not then in de- 
taolt which statement was not made a warranty 
by any of the terms of the contract, the state- 
ments were only representations, and not war- 
ranties. 

[Bd. Note.— SXir other cases, see Insurance, 
Cest Dig. i 560; Dec Dig. «»265J 



7. IKSDAAHCS «s>253— "lUrBBSXnSAKIOKa"-.- 

£ffbct. 
Representations are not a part of the con- 
tract in the sense that warranties are, but are 
inducements to a contract though not facts 
which are contracted to be true, and they do 
not have to be literally true, as do warranties. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. §i C!88-&12; Dec. Dig. <g=»253. 

For other definitions, see Words and Phrases, 
First and Second Series, Representation.] 

8. Iksdbahce «=»255, 256(1)— Fidelitt In- 

SUKANCa— BEPBKSBNT.moN— KFFECT. 

A representation In the renewal receipt of ^ 
fidelity bond that the employ^ was not in default 
was a representation material to the rislt, and 
which if falsely or fraudulently made would 
avoid the contract. 

[Ed. Note.— For other cases, see. Insurance, 
CentDig. SS 548, 549; Dec.I>ig. «=»255, 256(1).] 

9. Iksxtbance <e=32S6(2) — Fioblitt Bond — 

BXPBESBNTATIONS. 

In the case of a representation, although ma- 
terial to the risb, if made in good faith, its fal- 
sity will not render the contract induced thereby 
void or voidable. 

[Ed. Note.— For other cases, see Insuranoe, 
Cent Dig. i 640; Dec. Dig. €=»256(2).] 

10. Insttbance ®=>256(2) — Fidelitt Bond — 
Kbnewal Contbact— Repbbsentationb. 

Where a fidelity bond provided that all rep- 
resentations made by the employer to the sure- 
ty were warranted to be true, the employer's 
statements or representations on the issuance of 
a renewal receipt that the employe bad not to 
tbe knowlediie of the employer been in default in 
the position covered by the bond and a renewal 
receipt, and had faithfully accounted for nil 
moneys in his custody, and was not in deftiult, 
made when none of the officers of the insured 
bank knew, or had any reasonaUe ground for 
knowing, tliat the employ^ was in default, were 
not made recklessly, but in tbe honest belief that 
they were true, and their nntruth would not de- 
feat the renewal bond. 

[Ed. Note. — For other cases, see Insurance, 
Cent. Dig. g 540; Dec Dig. <8=»2sC(2).] 

Appeal from Circuit Court, New Madrid 
County; Sterling H. McCarty, Judge. 

Action bj the Commercial Bank against 
the American Bonding Company. Judgment 
for plaintiff, and defendant appeals. Af- 
firmed. 

Everett Reeves, of Carutbersville, tor ap- 
pellant John A Hope, of St Louis, and 
Riley ft Siley, of New Madrid, tor respond- 
ent. 

FABBINOTON, J. The plaintiff (respond- 
ent) recovered a Judgment for tbe full penal- 
ty of an indemnity bond, and the defendant 
appealed. 

Walter !•. Meier, a bookkeeper In the em- 
ploy of the plaintltr bank at New Madrid, 
Mo., was required in Octob^ 1907, to give 
a bond to cover any defalcatl(His or embessle- 
ments. This bond was bought ofand signed 
by the defendant In the application for the 
bond were certain questions asked tbe pres- 
ident of tbe bank which he as such answered 
in writing and signed, among which are ttie 
f (blowing: 

"6. Is the applicant now, or has he bean from 
any cause, indebted to the bank 



«=3For odier casa* bm tarn* toplo and-KBT-NUMBBS ta- all Key-Noiubarad DIg«Ms and 



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100 



iSfl eODTIXWXiSTERN. BC^OBTBB 



(Ma 



If TO, gin particnlars, statine amount, how in- 
curred, and how payment is secured. Answer: 
No. 

"6. (a) Is the applicant now or aboAt to be 
engagred or interested in &ny other business or 
employment other than in the bank's service? 
Answer: No." 

"12. (a) Has applicant always faithfully, hon- 
estly, and punctually accounted to yon for all 
moneys and property heretofore onder his control 
or custody as your employ6? Answer:, Yes. 
(b) Are applicant's accounts at this date in ev- 
ery respect correct and proper securities, prop- 
^rty, and funds on band t» balance his accounts V 
Answer: Tes." 

Immediately after these and other ques- 
tions and answers tn tiie application tbe fol- 
lowing appears: 

"It is agreed that the above answers shall 
be warranties and form a part of and be condi- 
tions precedent to the issuance, continuance, 
or any renewal of or substitution for the bond 
tbat may be issued by the American Bonding 
Company of Baltimore In favor of the undersign- 
ed upon the person above named." 

The bond was renewed each year before 
the Issuing of a renewal receipt, and before 
each renewal receipt was Issued the cashier 
of the bank made the following written state- 
ment: 

"This is to certi^ that since the issual of the 
above bond Mr. Walter L. Meier, hereinafter 
called employ^, has faithfully, honestly, and 
punctually accounted for all moneys and prop- 
erty in the said employe's control or custody as 
my or our employ^, has always had proper funds 
and securities on hand, and is not now in de- 
fault as such employ^." 

Each renewal receipt provided: 

"In consideration of the sum of twelve and 
"/jpo dollars, American Bonding Company of 
Baltimore hereby continues in force its surety 
bond No. ^82440 for the fidelity of Walter L. 
Meier, in favor of the Commercial Bank, New 
Madrid, Missouri, from the 4th day of October, 
1908, to the 4th day of October, 1909 (dates 
being appropriate, of course), in the penalty 
of five thousand dollars, covering the same po- 
sition and SDbjec^ to all the covenants and con- 
ditions set forth and expressed in said bond 
heretofore issued by this company on the 17th 
day of October. 1907." 

It is uncontrovertcd that at the times tbe 
renewal receipts were Issued covering the 
defalcations and embezzlemcDts allowed by 
the Judgment of the trial court Meier was 
heavily overdrawn at the bank in sums rang- 
ing from $1,000 to $4,000, which overdrafts 
were made by him without the knowledge or 
consent of the bank, and it is further beyond 
controversy that when such overdrafts were 
discovered Meier was told by the officers of 
the bank to reduce them. Tbey were after- 
wards reduced and taken care of, being paid 
to tbe bank by friends of Meier who were 
also officers and stockholders in the bank. 
It is admitted that he owed the president of 
the bank who signed the original application 
several thousand dollars when the renewals 
on which the recovery was based were is- 
sued. It is a fact that Meier ventured in the 
automobile business and became indebted 
therein several thousand dollars, buying such 
business and giving his notes and a mortgage 
to secure tbe same to the man who wa^ pres- 



ident of the bank, and wbo signed tbe origi- 
nal application. It is also a fact beyond <jues- 
tion that Meier had little or no property to 
stand good for Ids Indebtedness, which in- 
cluded the overdrafts and the individual in- 
debtedness to officers of the bank, and tbat 
the fact of his indebtedness and the amount 
of property he owned were well known to the 
bank's officers. It appears that he became 
engaged in the picture show business when 
these renewals were issued. His salary 
from the bank was $1,000 per year. All his 
business ventures were failures, and be de- 
faulted and embezzled from the bank be- 
tween $6,000 and $7,000, whidi he states was 
lost by him In gambling at a game designated 
in the record as "shooting craps." The fol- 
lowing admission was made during the trial: 

"It is admitted that the plaintiff gave the de- 
fendant American Bonding Company no notice 
of any kind or character of the aUeged over- 
drafts, defaults, errors, embezzlements, or any 
other misconduct of Walter L>. Meier in his em- 
ployment with the Commercial Bank prior to W. 
H. Garanflo's letter dated November 8, 1912, 
which has been offered in evidence, and that no 
other notice than the notice and proof of loss 
heretofore offered in evidence in this case by 
the plaintiff was ever given to the defendant 
American Bonding Company." 

The bond contained tbe following provl- 
sions: 

' "15. This bond is made, issued, and accepted 
or reneAved upon the following conditions: 

"(1) This bond sliall not lapse at the end of the 
above time if it shall be continued in force by a 
renewal receipt or receipts, executed by the 
surety, but shall continue in force for the term 
or terms of such renewal. Tbe liability of the 
surety, however, shall not be cumulative. 

"(2) That all the representations made by the 
employer, Iiis or its officers, to the surety are 
warranted by the employer to be true; that the 
employ6 has not to the knowledge of the em- 
ployer, his or its officers, been in arrears or a 
defaulter in the position covered by this bond or 
in any other position. • ♦ • " 

A number of defenses were set up by tbe 
defendant, including tbe knowledge of the 
officers of the bank as to Meier's gambling, 
the question of the good faith of the bank's 
officers in relation to the overdrafts, the fail- 
ure on their part to notify the defendant 
of these overdrafts, the ftiilure on tbeir 
part to properly investigate the books and 
accounts of A^eler, and the failure on their 
part to use ordinary diligence to discover 
the false charges and actual embezzleu>entB 
that took place. 

[1] The case was referred to a referee who 
found all the issues as to good faith, knowl- 
edge, and the like, in favor of the bank, and, 
there being evidence to support such findings, 
this disposes of these questions here. Lack- 
land V. Renshaw & Surety Co., 256 Mo. loc 
dt 152, 165 S. W. 314. He found that Meier 
had embezzled $6,018.69 between November 
27, 1911, and October 9, 1912, tbe false ' 
charges on tbe books being 21 in number, 
and ranging in amount fr<nn $55 up to $1,- 
000. Tbe finding of the referee treated of 
Meier's overdrafts, debts, and ventnres Into 
other hiwineaa In this fa^oa: , -^ ^ ^ 



kle 



U«J 



OOMHEBCIAZi BAfTS. ▼. AMBBIOAIT BOMDXX'a. OCK- 



101 



"I do not find that the bank was proUhitad 
from maldng loans to Meier or to his auto com- 

Snj, or to his picture ghow company, nor was 
aer deprived of the right to engage in other 
binineai under boa contract witli the bond or 
Titli the bank." 

[2] Sectioiia 7024, 7026, and 6&S7, B. S. 
1909, do not cover this character ot con- 
tract, and, as was held In Fadflc Mutual Ins. 
Go. 7. Glaser, 245 Mo. loc dt 386, 150 S. W. 
549, 45 Ia R. A. (N. S.) 222, thia secUon was 
not Intoided to restrict the traedom of con- 
tract except In tbose Instances falllnK wltbln 
its provisions. 

[1] Ibis case la to be governed by the gen- 
eral law of contracts. That genenl law Is 
well settled, and Is tbat a warranty Is 
"parcel of the contract" (Salts t. Prudential 
InsuTance Co., 140 Mo. App. 142, 120 S. W. 
714), and tbat warranties must be absolutely 
tnie whether material to the risk or not 
(Aloe ▼. Mutual Beserre Life Ass'n, 147 Mo. 
Sei, 49 S. W. 553; Pacific Mutual Life Ins. 
0>. V. Glaser, supra; Krey Packing Co. v. U. 
S. Fidelity & Guar. Co., 189 Mo. App. loc. 
dt 508, 175 S. W. 822; Lyons v. National 
Surety Ca, 243 Mo. 607, 147 S. W. 778; 
Guarantee (>>. of North America y. Mechan- 
ics' Savings Bank & Trust Co., 183 TT. 8. 402, 
22 Sup. Ct. 124, 46 L. Ed. 253; McDenuott ▼. 
Modem Woodmen of America, 97 Mo. App. 
636, 71 S. W. 833). 

[4] It is held in Long Broa Grocery Co. ▼. 
U. S. Fid^ty & Guar. Co., 130 Mo. App. loc. 
dt 430, no S. W. 31: 

"Hie rule is generally recognized that 'a re- 
newal of a policy constitutes a separate and dis- 
tinct contract for the period or time covered 
by aoefa renewal. It Is, however, a contract 
irith the aame terms and conditions as is evi- 
deiced by the bond which is renewed, because 
tl>e renewal receipt recites that it is renewed in 
accordance with the terms of the bond.' De 
Jenette v. Siddity & Casualty Co. of N. Y. [98 
Ky. 558] 38 8. W. 828; Railroad v. American 
Surety Co., 99 Fed. 674 (41 C. C. A. 45] ; In- 
snrance Co. v. Walsh, 64 in. 164, 5 Am. Rep. 
115; Brady ▼. Insurance Ca, 11 Mich. 425." 

The opinion (continuing) holds that the 
only warranties on which the company could 
b« held to rely are tbose contained In the 
original application as modified or changed 
in a subsequent application for a renewal. 

[S] In our case there Is no evidence what- 
ever that at the time the original application 
vas made there were any of the statements 
which were warranted to be true which 
»cre false or untrue. The bond nowhere 
makes the statements made in the applica- 
tion for a renewal warranties, and, as the 
bond Is not cumulative, but on a renewal, lia- 
bility thereon Is extended not only over de- 
falcations made within the first year, but 
also during tbe renewal period, the penal sum 
named therein being the full extent ot the 
company's liability, it can be readily seen 
that tbe consideration given by tbe company 
tot tbe premium on a renewal is less than 
the consideration given for the first year a 
bond is issued. It Is true tbat the original 
warranties run through any renewal, which 



means tbat, wbeie a bond is. renewed the 
company has a right, in case demand is made 
on it, under the terms of the contract, to 
show that any stat^uents in tbe original ap^ 
plication made for the bond were untrue, bat 
this does not mean that sucb statements are 
promissory covenants or warranties which 
will render the bond void it tbe conditions 
existing between the employ^ and bis em- 
ployer become changed. 

[6] Tbe bonding company In this case did 
issue a renewal receipt and thereby renewed 
its contract, but before doing so it required 
a statement which It prepared and requested 
tbe cashier to sign, making only tbe asser- 
tion that the employ^ bad faithfully, honest- 
ly, and punctually accounted for all moneys 
and property and always bad proper securi- 
ties, property, and funds on band to balance 
bis accounts, and was not then in default. 
This statement, as said before, was not made 
a warranty by any of the terms of tbe con- 
tract before us, and can tberefore be con- 
sidered only as a representation. And on 
examining the bond it will be seen (in sec- 
tion 2 hereinbefore copied) that the represen- 
tation was "that the employ^ has not to the 
knowledge of the employer, bis or its officers, 
been in arrears or a defaulter in tbe position 
covered by this bond or in any other posi- 
tloa" Tbe renewal certificate required by 
the company was practically a reiteration ot 
tbat clause of the original bond. We there- 
fore hold tbat tbe statements made in the 
renewal certificate were by tbe terms of 
tbe agreements between the parties nothing 
more than representations and not warran- 
ties. This being true, it becomes important to 
view the question from the standpoint that 
such representations made in tbe renewal 
certificate were, in fact, false and untrue, 
because at that time Meier was In arrears, 
and was a defaulter, as the amount sought by 
the plaintiff in its petition discloses. 

[7, 8] The law is well settled tbat repre- 
sentations are not a part of tbe contract in 
the sense tbat warranties are ; tbat is, they 
are inducements to a contract, but not facts 
which are contracted to be true. It is also 
settled tbat a representation does not have 
to be literally true as does a warranty. 
However, a representation which is material 
to tbe risk — and we hold that the representa- 
tion made in this case was undoubtedly ma- 
terial to the risk — and which is falsely ox 
fraudulently made, will avoid the contract. 

[9] There is yet another distinction to be 
noted between a fact which is warranted to 
be true and one which is represented to be 
true, and that is that in the case of a war- 
ranty the statement must be true, whether 
material to tbe risk ot not, and must also 
be true in fact (Aloe v. Mutual Reserve life 
Ass'n, 147 Mo. 561, 49 S. W. 553; McDennott 
r. Modem Woodmen of America, 97 Mo. App. 
636, 71 S. W. 833; Krey Packing Co. v. U. S. 
Fidelity ft Guar. Co., 189 Mo. App. loc 
698, 175 S. W. 322),. whereas, in the case 



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387 80l/THWBSl?ERN RESPOEOXR 



<Mo. 



a representation, the fact stated, althonsb 
material to the risk. If made In good faith, 
will not, because the statement is untrae, 
render the contract which was induced by 
snch statement void or voidable. 

Joyce on Insurance, vol. 2, { 1864, p. 1876, 
defines a misrepresentation as follows: 

"A misrepresentation in insurance is an oral 
or written statement made by the assured or 
his authorized agent to the underwriter or his 
authorized agent of something as a fact which 
is untrue, is known to be untrue, and is stated 
with intent to mislead or deceivei or which is 
stated positively as true without its being 
known to be true, and which lias a tendency to 
mislead; such statement relating in both cases 
to material facts." 

Bacon on Benefit Societies and Life In- 
surance (3d Ed.) vol. 1, i 234, p. 512, states 
this to be the rnle: 

"The rule therefore is that, where the an- 
swers to questions in the application are repre- 
sentations, the death of the applicant from a 
latent disease which existed at the time of the 
application, but unknown to the applicant, he 
answering all questions in good faith, will not 
avoid the policy. But, where the answers are 
warranties, then the death of the applicant 
from a latent disease which existed at the time 
when he warranted himself to be free from it 
will avoid the policy." 

In the case of McDermott v. Modem 
Woodmen of America, 97 Mo. App. loc. dt. 
646, 71 S. W. 833, Judge Goode recognizes the 
distinction between a warranty and a rep- 
resentation as to good faith, holding, in ef- 
fect, that in order to avoid a policy on a 
false representation the answer must be false 
from a corrupt motive, while on a warranty 
it is only necessary that the answer be false 
in fact 

25 Cyc. 801, following certain cases cited, 
declares that a misrepresentation of a ma- 
terial matter will avoid a policy, although 
not fraudulently made; but this is qualified 
by stating that questions which are pro- 
pounded in the application call for answers 
founded on knowledge or belief of the appli- 
cant, and that a misstatement not knowing- 
ly made and not made with intent to deceive 
will not avoid the policy; also (page 802) 
that, if' the language of the policy and ap- 
plication reasonably indicate to the assured 
that his statements are to be as to his honest 
belief, such stipulations will not be construed 
as amounting to a warranty. 

[10] Turning to the contract in our case, 
as before pointed out, there were none of the 
statements which were warranted in the 
original application shown to have been false. 
Those same questions and answers were not 
carried forward at each renewal period, but 
only the questions as to whether Meier bad 
faithfully accounted for all moneys and prop- 
erty and had proper securities, property, and 
fonds on hand to balance his accounts and 
was not in default, were asked by the com- 
pany and answered by the cashier. The 



bond, tinder section 15, snbsee. 2, only held 
the employer to a knowledge of the employ^ 
being in default or In arrears; and, as the 
evidence taken before the referee did not dis- 
close that any of the bank's officers knevr or 
had reasonable ground for knowing at the 
time the certificate for a renewal was made 
that Meier had not faithfully, honestly, and 
punctually accounted for all money and 
property, or that he had not proper securities, 
property, and funds on hand to balance his 
accounts, or that he was in default, and as 
the finding of the referee was to the effect 
that none of the bank's ofilcerB had knowl- 
edge of the falsity of these facts which were 
stated in the certificate for renewal, we hold, 
with him, that the misrepresentations were 
not known to the cashier making the state- 
ment, and that be did not make it recklessly. 
The only statements shown to be false which 
were made by the bank's officers were those 
contained in the certificate of renewal. Such 
statements were not made warranties under 
the contract, and the finding of the referee, 
supported by evidence, is that these state- 
ments, although false, were unknovm to the 
cashier making the certificate, and that they 
were made in the honest belief that they 
were true. This will not defeat the bond. 
See Moulor v. American lAte Ins. Co., Ill 
U. S. 335, 4 Sup. Ct 466, 28 L. Ed. 447; Fi- 
delity Mutual Life Ass'n v.. Jeffords, 107 
Fed. 402, 46 C. 0. A. 377, 58 L. H. A. 193, 
loc. clt. 208, 209. 

The overdrafts were treated by the bank 
as indebtedness and were paid up. They are 
not connected in any way with the amount 
allowed by the referee and approved by tbe 
circuit judge in the Judgment rendered. 
There was one overdraft which was unau- 
thorized and which was known to the cash- 
ier at the time he made the renewal cer- 
tificate. The overdrafts, however, were 
made by Meier In the operation of bis au- 
tomobile and picture show business, and were 
treated by the bank as debts, and not de- 
falcations, and, in fact, they were debts, and 
not misappropriations in the sense of embez- 
zlements. The one overdraft above refer- 
red to, of $510, which was known to the cash- 
ier when he made the renewal certificate, 
was included in plaintiff's suit for recov- 
ery. This is explained by the plaintiff's wit- 
nesses, who say that after they found that 
Meier had defaulted and embezzled they 
then included everything he owed in tbe suit 
on the bond. It was not allowed, however, 
by the Judgment in the circuit court, and 
there is no pretense that It constituted a 
theft or embezzlement 

The judgment is affirmed. 

ROBERTSON, P. J., and STUEaiS. J., 
concur. 



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OOMMERCZAIi BANK r. MARTI/AKD CASUALTT CX). 



.103 



OOKHERCIAL BAKK v. MARTIAND GAS- 

UAIiT¥ OO. (No. lM6w) 

(^prinefidd Court 'of Appeals. Missoari. May 

36, 191& Keheanng Denied June 24, 1916.) 

1. Afpkai. and Ebbob <3=>1022(2>— Reteseh'8 
£!lkdinq— g0i«clx;sivehe3s. 

A referee's £ii^^ approved by the trial 
eoart is a special verdict, and, where supported 
by substantial evidence, is binding on the Court 
of Appeals. 

[Ed. Note.— BW ether caseq, aeit Appeal and 
Error, Cent. Bi«. { 401«; Dec. Dig. «=> 
1022(2).] 

2. InsUBANCB «=9l46(3)— COKTBACTS — OOM> 
8TBDCTION. » 

The contract of a surety company execntins 

its fidelity bond for a consideration must be 

construed most strictly in favor of the obligee. 

[Ed. Note. — For other cases, see insurance. 

Cent. Dig. { 295; Dec Dig. (8=»146(3).l 

3. Insurance «=>285— Fidelity 5ond— Ap- 
pucation— jilskepbesentations. 

In an application by the president of a bank 
for a bond for an employ^, the answer to a 
question whether he was indebted to the officers 
of the bank that he was indebted to about $3,500 
on personal indorsements, and the answer t« 
the qnestion whether he was interested in any 
«ther busineae that he owned a motor car com- 
pany, without -stating that he owned a motion 
picture business, and the answer that, so far as 
the president knew, he had always faithfully 
accounted for jOl moneys in his custody and had 
proper funds 'on hand to balance accounts, w«ro 
not misrepresentations, where they were made 
in good faith, And where it appeared that the 
balance was «ometimea "long and sometimes 
"short," and that such items were clerical er- 
rors which were from time to time straightened 
np, and that liis balance was "long" when the 
answer was -made. 

[Ed. Note. — ^For 'Other cases, see Insnranoe^ 
Cent Dig. f -057 ; Dec. Dig. «=»285.] 

Appeal tr«m Ciroult Court, New Madrid 
Connty ; Sterling H. McCarty, Judg& 

Action by the 'Commercial Bank against 
the Maryland ^Casualty Company. Judgment 
for piaintlflC, .and defendant appeals. Af- 
firmed. 

Oliver & Oliver, of Cape Girardeau, for 
appellant. John A. Hope, of St. l/ouis, and 
Riley & BU«y, of New Madrid, for respoDd- 
ent 

FARRINGTON, J. This case was tried at 
the same tlnie, having been referred to the 
same referee whose report waB approved In 
a judgment by the same trtal court, as that 
of Commercial Bank v. American Bonding 
Company, 187:8. W. 99, which was likewise 
appealed, and in which we have tblB day 
handed down an opinion. Practically the 
same defenses were set up to a recovery .on . 
the bond In tUs case that were relied «& la 
the American bonding Company Case. 

HJ We have carefully read the record 
before as, and Und that there Is substantial 
evidence to support the finding of the referee, 
and this, being a -Bpeclal verdict, Is binding 
on this ooart. iUickland t. Renshav ■& 
Surety (3o., 256 Mo. ISS, 18SJ, 165 8. W. 314; 
Long Brothers Grocery Co. v. U. S. Fidelity 



A=9For atfcariCaae«.«e.«Bm*.tqpia and XBT-MOUBKa in aU Kay-Nmnbarad Digesto and IndasM 



So Unar. Co., 180 Mo. App. 421, 110 S. W. 
29. The Judgment was for the full penalty 
of the bond, ?5,000. The referee's report, 
after setting out the dates and amounts of 
the defalcations and embezzlements of Meier, 
continues: ° 

"Said losses or embezzlements were not known 
or discovered by soid bank until about Novcmbcf; 
6, 1912, whereupon plidntiS notified the defend- 
ant on the 9th dav of November, 1912, -and aft- 
erwards furnished proof of said loss. The de- 
fendant, the casualty company, complains In 
Its answer and denies habihty on said bond be- 
cause it requested said Meier and the Commer- 
cial Bank to make true answers to certain qu^- 
tions at the time said bond was issued. 

"I find that said Meier made answers not true 
to some of said questions, that ho falsely stated 
he owned personal property worth $6,000 and 
that he had an income of one thousand dollars 
per year from the auto business, and that the 
bond applied for 'was to replace the one then 
in force. But, whether or not these untruthful 
statements aSect the risk, I find in the second 
, paragraph of said policy or bond that the em- 
ployer, the bank, made representations and 
promises which were warranted to be true; 
and, b]r the inclusion of the employer's state- 
ments in saia paragraph, I understand other 
statements are excluded, and that the bank is 
not bound or affected by the false statements 
of M«er. 

"The bond was written in advance by the cas- 
ualty company, and should be construed against 
it and in favor of the bank in case of doubt. 
The casualty company complains that the said 
bank made false representations in its answers 
in the application for said bond, that it had no 
knowledge of an^ habit of said Meier unfavor- 
aUe to the issmng of the bond, and that the 
bank represented that Meier was engaged only 
in the automobile business, and refused to in- 
form the defendant of the motion picture busi- 
ness and that his accounts were overdrawn. 
It further complains tibet tiie passbooks of de- 
positors were not balanced as stated by said 
bank in said application, and further com- 
plains that the bank neglected to notify the de- 
fendant immediately on the ^scovery of the 
claim against the defendant under said bond. 
But I find the bank acted in good faith and 
made true answers to the questions in said ap- 
plication. If said answers were not full and 
satis&ctory, the defendant should not have ac- 
cepted same and issued its policy : but, as the 
defendant wrote the bond and propounded the 
questions, and passed on their sufficiency, it 
soould not now complain, unless said answers 
were untrue. And I find the bank did not know 
of the dishonesty of Meier, and did not know 
that he was gambling, and did not know that 
he was in default in his accounts as an ofiicer 
of said bank, until about the 5th day of Novem- 
ber, 1912; that his interest in the auto busi- 
ness and picture show business were not con- 
trary to his contract with the bank or the terms 
of his bond ; that his overdrafts known to the 
bank were treated as loans, which the bank 
afterwards collected. 

"I find that the bank had the passbooks of its 
customers compared and balanced 'mostly 
monthly.' as agrce<l. The state bank commis- 
sioner wrote the bank in the fall of 1912 that 
he found the bank was well managed and in 
good condition. The bank officers and directors 
were representative business men of that com- 
munity, and, I find, acted,' in regard to the af- 
fairs of the bank, as such cheers in such towns 
usually do. Meier was competent and trusted, 
and had been known to the oflicers of the bank 
for many years. 

"The bond in this case was obtained by the nt- 

rsy 



Google 



104 



167 SOUTHWESTERN REPOHXBB 



mtmt good fnith ; the loas occurred ; the bank 
paid the casualty compiiny to carry the risk; 
It accepted tha responsibility; and I see do rea- 
son why it should be excused, • ♦ • " 

Tills finding, which \s supported by substan- 
tial ertdence, necessarily disposes of many 
of tUe queattons raised on this appeal. 

11, 3] IQ the application made by the presi- 
dent of the bank we And one point of dtlTi^r- 
ence from the application In the Atncrtc-an 
Bonding Company Case; In this npivUcntlon, 
MUcn asked If Meier wns indebted, to the 
oHlcers of the bnnk, the answer )s, "Yes." 
In giving the particulars the atiawer was, 
"About :f;j|500 pej'sonal Indorsement," Wlicn 
aaked if Meter was engaged or Interested In 
any other baslncss. the answer In this appli- 
cation was, "He owns the New Madrid Mo- 
torcar Company." The answer In this ap- 
plication did not slate that Meier was of 
good habits, and that there were no clrcum- 
Btancea unlavorahle to the Issuing of the 
bond opplicd for, but, on the other hand, the 
question only asked whether the ofhcers had 
knowledge of such things, and tue evidence 
amply snpports tlie finding of the reffree that 
they did not have knowledge of his gambling 
proclivities and Ms defalcations and em- 
beKKlements. It Is contended by appellant 
that there was a breach of warranty arising 
out of the following question and answer: 

"Q. Had be always faithfully aceouut&I to 
you for all money and property heretofore in his 
control or eusto<ly ns your employe, and has he 
alwajis li:id proper securities aud fiinda oa band 
to balaace accounts'? A, So tor as I know," 

It will be noted that this answer does not 
aftlrin that Meier had always faithfully ac- 
countfd, and that he hud alwaya had proper 
securities and funds on liand to balance ac- 
counts, but merely answereil that he had 
80 far OS tJie signer of the application on 
the part of the bank had knowledge. It Is 
true that the books as to cash had for a con- 
siderable period of time before and after 
this answer was made been out of balance — 
sometimes several hundred dollars "long" 
and sometimes several hundred dollars 
"short" — but the teHtiiaony shows that these 
items were clerical errors and were from 
time to time straightened op. On the day 
tliat the president nf the bank signed this 
application the boobs wliowcd Meier's account 
to be ?5tl0 "long." A strict construction — 
and this we must place ou defendant's con- 
tract U^ackland v, Kenshaw & Surety Co., 
256 Mo. loc, cit, HO, 165 S. W. 314)— makes 
the above question and answer meiin that, 
so far as the president knew, Meier had 
always had proiier securities and funds on 
hand to balnnee accounts. As to the "longs" 
and "shorts" hi his accounts prior to that 
time, the errors have been corrected, so thflt 
the president could trutlifully state that 
Meier had had suaicletit securities and 
funds on hand to balance accounts. Wlille 
they might not always have balanced on any 



particular day, Meier evidently had 

funds and securities on band ou tti 
the president signed the appllcutlDu, to) 
books on that day showed that he was "\a 
on cash. The (luestloo asked did uot re<|tlf« 1 
the statement that Meier's aecotii 
balanced, but the president was as (. 
er Meier had always had proper *ecurltl 
and funds on hand to balance.' his accuoi 
and the answer merely was, "So fur aj 1 
know," which is not shown to have 
misrepresentation. 

1) indlng as we do from thla record 1 
defendant has failed to show a bn 
any of the warranties Id this coab 
Judgment should be atllrnied ; aiul tt J 
ordered. 

HOUEKTSON, P. J., and STCUG^ 

concur. 



BRENARn MFO. CO. y. FREEMA 

WESCOTT. (No. IflSL) 
{Springfield Court of Appeals. Mia 
June 17. ini6.t 

1. Principal and Acie.xt €i=»l24(2)— J 

trv— QLiEsrros for Juby. 
In jin action on a ores given siibje 
advertisins contract proriding for o c<mtc 
held, that wlictlier the plaintiff's ozrnt 
thc'r express or implied authority to bc 
submit other or different propositions t^_*H 
eontniucrl within the printcff bl rinks 
him by the plaintiff was for the jury. 

fEd, Xote.— For other eases, see Principal i 
Agent, Cent. Dig, f 724; Dec. Dig. <S=iaifl 

2. Fbiscipal Atia Aqesjt e=J7U(i2) 

TSACT — Agent's AiTUOarnf — ActcrTATC 
If such ii^'put bad autliorily to 
submit prupocitions other than tbo>. 
within tbe priatcd forms fiiruisiied i...~ 
(tlaiutiff, defendant's delivery of the couo 
notes, etc., to bini, was deiivwry to the [•1»'9 
for acceptance, and plaintilTs letter ' 
ing receipt and npproval of order iH' 
as (iofeiidant was eoncerneil, the iic. • 
npprovid of tbe conti'flct made will, 

[Ed. Note.— For other eases, sec I'l 
Acent, Cent. Dig. |S 639, 640: Dec 
170(1:),] 

3. PatSCIPAL AND AOENT l3=5lT ' 
ITY Of AGENI^— CONTBACT— .^ 

Wlici'o the agent in the ap, ..... 
liis antliority solicited dcfeadurii's ord»r 
certain Kooris to be used in cnrryins "ut 
vertisiog coutcst scheme, and iii I i 

tain provisions na to service to 
the plnintill, after defendant's :■ ... 
tiff's letter referring to plninfilYs c«j-op 
the defendant might assimie that bik"1> 
contract, etc., were forwarded * ' ' 
and, on reeeiviug an aeknowtaK 
dtr in general terms, might ii ^ 

contract had been approved by piuiutJiI. 
lEd. Note. — For other eiises. see F'riucii 
A^-etit, Cent. Dig. || 039, 640; Dec "^^ 
170(2).] 

Appeal from Circuit Court, Hoirelj 

ty ; W. N. Kvana, .Judge. 

Action by the Breaard Mannfafl 
Company against Freeman & Wesc-ott. 
ment for defendant, and pMlutilT 
Alhrmed. 



^;3lr'oi' other t:aitat tea aun* topis and KEY-KUMUEB in lil Ke)--Numbu'sd DlgesU and 

Digitized by 



Uo.) 



BRENARD MFO. CO. v. FREEMAN A WESCOTT 



106 



J. L Van Wormer, of West Plains, for ap- 
pellant 

ROBERTSON, P. 3. In the petition it Is 
alleged in so many different counts tbat the 
defendants eiecnted and delivered to plaln- 
ai their six promissory notes aggregating 
the principal sum of |400 and asldng Judg- 
ment for tliat amount. A verdict was re- 
turned for defendants, judgment entered 
iereon, and plaintiff appeals. 

The defendants admitted the execution of 
ie notes, but alleged that at the time they 
fere executed, and as the consideration there- 
ior, the piointiff and defendants entered In- 

a written contract wherein It is stated 
hat: 

Plaintiff agreed "to inrtnll the Claxton Piano 
bi. anil secure co-operation of young ladies in 
urtbering the proposition and ke«p them lined 
ip and instructed in tlie work, to put on the 
iles and assist them in promoting their busi- 

"The second part [defendants] is to have gross 
eceipts for six months to be six thousand dol- 
irs tJCOOO.OO), and furthermore the second 
«rt.T is only to pay pro rata of installments, 
s [ler gross receipts, and they agree to notify 
m party in case of the lack of interest shown 

1 contest, so as to enable first part to remedy 
be same. 

"These notes are not transferable and arc 
ound together with printed order and agree- 
ifnt and this additional contract to be in full 
live and effect to l>e protected by the first 
any's bond to be deposited in bank designated 
T woond party, and to remain there until sec- 
ad party is thoroughly satisfied. Also to make 
xitract for newspaper ads at Brenard Co.'s 
ipense." 

The plaintiff's place of business was in 
wa aty, Iowa. 

The defendants then alleged tbat the plaln- 
II failed to perform each and every agree- 
lent contained in the contract and ask for 
idgment In their behalf. No reply was 
led. bat the trial proceeded as though the 
lets alleged in the answer were in Issue. 
The testimony discloses that the notes of- 
ired In evidence are made payable to the or- 
!r of the plaintiff, and each contained the 
ausf that "this note Is subject- to contract" 
lie pleadings are not very expUclt, as the 
iswer does not connect the contract there- 
I copied with the transaction to which It re- 
's, so that the answer standing alone is 
most meaningless; but both parties have 
Mted the pleadings as sufficient to raise 
e issues tried and submitted to the jury. 
From the testimony It appears that the 
■1 transaction Involved was that of de- 
Bdants, who were engaged in some kind of 
fail mercantile business, adopting an ad- 
irtlsing scheme promoted by the . plaintiff. 
1 September 18, 1912. the plainUff wrote 
iKter to the defendants, in answer to one 
m them, stating that the proposition 
»nsists of conducting a piano contest" In 
t ktter it Is said that: 
"^'ith onr method, we start with from 150 
' -''*' contestants the names of tourse to be 
ipplied by you, and under this method, we can 
^ practically all of them active for almost 



the entire period. • • • The cost of our 
plan, which includes all the necessary adver- 
tising material, our co-operation and instruc- 
tionsj together with the piano is $300, less 3 
per cent, ten days, or thirty days net, or in cas- 
es where the merchant wants to pay for it id 
installments, they can pay for it oy giving us 
their six notes of $50.00 each." 

About September 27, 1912, an agent for 
the plaintiff appeared at the place of busi- 
ness of the defendants In West Plains re- 
sulting in the defendants executing the in- 
struments sued upon and signing an order 
to the plaintiff for the piano and various oth- 
er items which apparently are offered as pre- 
miums in the contest to be given to the hold- 
ers of tickets issued by the defendants np- 
on the sale of their goods. The price of 
these articles is stated to be "$240; leas al- 
lowance for settlement with order, $20; net 
$400." At this time, and as part of the same 
transaction, the contract set up by defend- 
ants was signed by the defendants aiid 4n 
the name of the plaintiff by the agent At 
the same time a letter addressed to the 
plaintiff was signed by the defendants read- 
ing, so far as necessary to copy, as follows: 

"On your approval of this order, delivered to 
me at your earliest convenience, f. o. b. facto- 
ry or distributing point the piano, silverware 
and advertising matter described on this and 
reversed side, in payment for wliich I herewith 
hand you my six notes payable to your order ag- 
gregating $400. If order is not approved and 
shipped by you the notes are to be canceled and 
returned to me. 

"My last twelve months' sales were 810,000.00. 
My next twelve months' sales to be $12,000.00, 
and that if 3V6 per cent, of my gross sales does 
not amount to four hundred dollars ($400.00) for 
the next twelve months you will pay me the de- 
ficiency in cash, and send your bond for $400.00 
to cover this agreement with me. • • • 

"I agree to take the shipments promptly, car- 
ry out the contest plan, promptly meet all ob- 
ligations entered into under this agreement,: 
keep the piano well displayed in my store, issue 
piano votes for each cent purchased and every 
sixty days of this contr.act to report to you 
my gross sales, and promptly furnish yon all 
information you request to enable you to assists 
in pushing the contest" 

This letter api)earB to have been written 
upon a printed form furnished by the plaln- 
tur. These . papers were all signed and d&; 
llrered to the agent, who placed them in an 
envelope and proposed to immediately mail 
them to the plaintiff. On the same day the 
agent made a report to the plaintiff, appar- 
ently upon a written blank provided there- 
for, concerning the defendants, their a^es, 
financial standing, and other i^cts, and con- 
cluded as follows: 

"I made no verbal or written agreement in 
securing this order, other than is shown on 
original order which was signed by the customer 
and is hereto attached." 

The uncontradicted testimony is that plain- 
tiff did not receive the contract relied on b^ 
defendants. 

Under date of September 30, 1912, the 
plaintiff acknowledged receipt of the order of 
defendants and advised them that same had 
been approved and the goods would be sent 
at once. With that letter was inclosed i 



"tizeri-BV 



Google 



106 



187 SOUTHWESTEBN KQFORTBa 



(Mo. 



copyrighted "book of anggestlonB for push- 
ing the contest" Hie letter also contained 
tbla: 

"Important. Right now, by special delivery 
moil, forward me a list of 150 names of persons 
wbom you desire as contestants, so we can make 
up your contest voting register, and forward to 
you at once, thus having everything ready to 
• push the campaign. * * * Best assured that 
we will take pleasure in assisting you in making 
this contest a complete success in every way. 

Just what part the plaintiff was to take 
In this contest is not easy to gather, either 
from the contract set up in the answer of 
the defendants, or from the testimony in the 
case. The order and letter of the defendants 
is extremely ambiguous; but, irrespective of 
the contract relied upon by the defendants. 
It appears to be conceded In the letters 
written by the plaintifif, the one before the 
order was given and the one afterwards, and 
in other letters to which we have not re- 
ferred, that certain assistance was to be ren- 
dered by the plaintiff In carrying out the 
scheme into which defendants had entered. 

The tesUinony on behalf of plaintiff is to 
the effect that the agent was employed for 
the • purpose of securing orders on blank 
forms furnished him by the plaintiff; that 
he could not make any change in the terms 
or conditions of the contract, "unless such 
alteration or addition was made in writing 
and made a part of the same." All of the 
orders were taken subject to the approval of 
plaintiff after they were sent to It, and, as 
the witness stated: 

"If the terms and conditions were satisfac- 
tory, we approved the order, notified the cus- 
tomer of the approval and shipped the goods. 
He had no autiiority to make any supplementary 
contract, or to make sales outright." 

[1-8] The contest in the trial court ap- 
pears, as the case is submitted to us here, to 
have turned solely on the question of the 
authority of the agent 

The real issue here Is as to whether or not 
the testimony tended to prove such facts as 
Justified the conclusion that the agent of the 
plaintiff had the authority, express or im- 
plied, to accept and submit other or different 
propositions than those contained within the 
printed forms furnished him by the plaintiff. 
We say this because, if he did, the delivery 
to- him was delivery to plaintiff for accept- 
ance, and when defendants received the let- 
ter of September 30, 1012, acknowledging re- 
ceipt and approval of order, this meant, so 
far as defendants were concerned, the ac- 
ceptance and approval of the contract set 
out in their answer. The fact that the let- 
ter accompanying the order and contract re- 
ferred only to what appeared thereon was 
not condnslve on defendants, because fur- 
ther along It refers to plaintiff assisting "in 
pushing the contest" It is evident from all 
the testimony that in this letter and order 
the things plaintiff was to do were not men- 
tioned In detail, U at all. The letter de- 
fendants signed to go with the order per- 



tained more to an agreement to take the 
piano and other things Included therewith, 
and did not purport to cover what plaintiff 
was to do about the contest It will be ob- 
served from what we have already stated 
that the transaction had with the agent did 
not purport to become binding until approv- 
ed by the plaintiff. It is also true that the 
subject-matter of the scheme Into which de- 
fendants entered was not fully disclosed by 
the instruments to which plaintiff now seeks 
to confine the defendants. TUs case, we re- 
peat. Involves, not so much a question of 
authority of the agent to make a contract, 
as it does the right of the defendants to as- 
sume that the proposal which they gave to 
the agent was forwarded to and accepted 
by the plaintiff. The agent contracted condi- 
tionally and agreed with the defendants to 
submit the proposition to the plaintiff for 
acceptance or rejection. That wliat he did 
was within the apparent scope of his author- 
ity we think cannot be qu^tioned. He so- 
licited of the defendants their order for cer- 
tain goods to be used in carrying out the 
scheme and incorporated therewith certain 
provisions for services to be rendered in be- 
half of the plaintiff, and this was done after 
defendants had received from the plaintiff 
the letter in which reference was made to 
"our co-operation" and to what plaintiff 
would do in the contest These papers the 
defendants had a right to assume were all 
forwarded to the plaintiff, and when they 
received an acknowledgment in general term."; 
of the order they had a tight to assume 
that the controverted contract had also been 
received and approved by the plaintiff. 

But, accepting and adopting the theory 
upon which the case was tried, we are of the 
opinion that, considering the facts and dr, 
cumstances In this case, it was a question 
for the Jury, and not a question for the 
court, to declare whether as a matter of 
fact the agent bad the authority to make the 
contract Involved in this case, if we say he 
did make the contract as defendants contend. 

STURGIS and PARRINQTON, JJ., concur. 



VASSILOPULOS V. FABIANOFF et al. 

(Kansas City Court of Appeals. Missouri. 

June 12, 1916.) 

1. Affeai, and ESbbob ^=»364 — Betubh of 

Where, pursuant to Rev. St 1900, | 2043, «1- 

lowing sudi appeals, one of the judges of the 
Kansas City Court of Appeals In March grant- 
ed an appeal, such appeal is returnable to the 
following "October term. 

[Ed. Note. — For other cases, see Appeal and 
Error, Gent Dig. §{ 1960-1976; Dec. Dig. «» 
364.] 

2. Appeal and Ebbob «s>l&l(6} — Pebsoss 
ENTiTLEn to Appbial. 

Undw Rev. St 1909, § 2038, declaring that 
any party to a suit aggrieved by any judgment 
may appeal, a surety bound to pay any juds- 



^s»For othsr easM loe same topic and KST-NUMBER In all Key^IOmbered DlgeBts ana Indexu 



ile 



Uo.) 



VASSILOPULOS r. FABIANOFF^ 



107 



ment rendered ftgainst Ms prindpal may appeal 
from BQch a JDagment, though not a party of 
moid, for he is aggnevad by snch Jndgisent, 
and the statute, before amendment, provided 
that any person aggrieved by any final judg- 
ment might appeal, and it was the intention of 
the Legiiuatare not to change sodi law. 

[Ed. Note. — For other cases, see Appeal and 
Brror, Cent. Dis. H 951, 062; Dec. Dig. «=» 
151(6).] 

3. Appkai. and Ebbob 9=>363 — Allowance 

OF APPEAI/— RlQHT TO ALLOWANCE. 

Under Rev. St. 1909, | 2043, declaring that 
no Judge of the Court of Appeals shall allow 
an appeal unless it shall appear from -inspec- 
tion of a copy of the record tiiat error was com- 
mitted, a showing that judgment was rendered 
on an amended complaint not served on the de- 
fendant as required by the roles of that circuit 
is enough showing of error to warrant the ap- 
peal 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. §| 1962-1968; Dec. Dig. «=> 
363.] 

4. Appeal and E^bob «=s>430(1)— Pkstection 
of .4jppkal— noticb. 

Where an appeal allowed by the Kansas 
Oity Court of Appeals was returnable to the 
October term, but appellant failed to serve no- 
tice on respondent 20 days before the commence- 
ment of such term, as required by Rev. St, 1900, 
{ 2016, though it appeared that respondent liv- 
ed at the. address he had given in his testi- 
mony at trial until after tbe time for the filing 
of notice^ the appeal will be dismiaaed ; for, the 
right to appeal being statutory, an appellant 
most comply with the statutes. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. ( 2173; Dec Dig. «=»480 

a).] 

Action by Louis Vassllopnlos against Gust 
Pabianoff. From a Judgment for plaintiff, 
the National Surety Company appeals, though 
not a party of record. On piotlon to dismiss 
appeal. Motion granted. 

Clyde Taylor, of Kansas City, for appel- 
lant Ia. a. Leugblln, of Kansas City, for 
respondent. 

TRIHBIiEl, J. [1] The appeal herein was 
granted the National Surety Company by 
one of the Judges of this court under section 
2013, B. S. Mo. 1909. The order granting the 
appeal was made March 16, 1916, and the 
appeal was therefore returnable to the Octo- 
ber term, 1916. 

The case In which th» appeal was allowed 
was that of Lonls Yassllapulos v. Gust Fa- 
bianoff, in which a Judgment for $1,000 was 
rendered against the latter on December 19, 
1914, by the circuit court of Jackson county, 
Uo. It seems that, as originally instituted, 
the suit was brought July 2, 1914, by Louis 
Vassilopulos against John J. Orler and Gust 
Fahlanofl in which the petition alleged a 
contract whereby defendants agreed, In con- 
sideration of 1427 paid to them by plaintiff, 
to famish employment for 86 men on the 
tracks of the Chicago, Sock Island & Pacific 
Railway Company at Davenport, Iowa ; that 
plaintiff kept 80 men waiting in Kansas City 
for defendants to furnish with said employ- 
ment, bat that said defendants violated said 



contract and failed to furnish said employ 
ment; that plaintiff was damaged not only 
In the loss of the money he paid, but also by 
the loss of the services of the 80 men and 
the cost of their board and lodging since 
making the agreement, aggregating In all the 
sum of $6,000, for which judgment was 
prayed. Summons was issued and served 
upon both defendants. Grier appeared and 
filed answer, but Fabianoff never appeared. 
On December 2, 1914, the cause was by 
agreement dismissed as to Grler. 

On December 14, 1914, the plaintiff filed an 
amended petition against Fabianoff only. In 
this amended petition it was alleged that 
defendant conducted an employment agency 
In Kansas City, Mo., and was by the dty 
duly licensed so to do; that on or about Feb- 
ruary 25, 1914, defendant, with Intent to de- 
ceive and defraud plaintiff, represented to the , 
latter that he had positions for 86 men as 
track laborers for the Chicago, Rock Island 
& Pacific Railway Company at Davenport, 
Iowa, which he was authorized to fill, and 
that plaintiff by paying |427 could select 
said men to fill such positions; that said 
representations were false, and known by 
defendant to be false at the time they were 
made; that plaintiff relied upon said repre- 
sentations, and was thereby Induced to pay 
defendant $427 and to keep said men on ex- 
pense and In Idleness for four weeks waiting 
for defendant to ship them to Davenport; 
that by reason of the premises plaintiff was 
damaged In the sum of $1,000, for which he 
asks Judgment. 

Rule 6 of the Jackson circuit court re- 
quired that, whenever an amendment of a 
petition was made before trial, the adverse 
party must be served with a copy of such 
amended pleading, as prescribed by law fbr 
service of notice, and, unless otherwise or- 
dered, any appropriate pleading thereto 
should be filed within three days after such 
service. No service of such amended peti- 
tion was had upon Fabianoff. But on De- 
cember 19, 1914, as hereinbefore stated, 
judgment by default was entered against him 
in this sum of $1,000. 

On the 12th day of January, 1916, YassUop- 
nlos began a suit in the circuit court of 
Jackson county. Mo., on the bond of I^bian- 
off, given by him In accordance with the or- 
dinances of Kansas City to obtain a license 
to conduct an employment agency In said 
city. Said bond was to the said city in the 
sum of $1,000 and conditioned for the fall 
compliance on the part of said Fabianoff 
with the ordinances of the city governing 
said business, and also conditioned that said 
Fabianoff would pay all Judgments rendered 
against him on account of any willful mis- 
representations or for willfally deceiving 
any person transacting business with him, or 
for being guilty of any deception whatever 
toward any person who might employ any /^^ T 

person to work for any other person, flal^/ V^jOOQ IC 



^=»V<a othsr cases ■•• asm* toplo and KBY-NOHBUS In all Key-Numbered DigesU and Indues 



108 



Ut7 SOUTHWSSTIBRN RBPOBTEHt 



(Mo. 



suit on said bond was entlUed "Kansas City, 
at. the RelatlMi and to tbe Use of Louis 
VasBUopalos, Plaintiff v. Gust Fabianoff 
and National Surety Ck>mpeny, Defendants." 
The petition therein set out the section of 
the ordinance under which the bond was 
given. It also alleges the execution of said 
bond by the National Surety Company as 
surety tbereon, a rerifled copy of which was 
attached. It further alleged the bringing of 
the suit against Fabianoff upon the grounds 
hereinbefore stated and the recovering of the 
Judgment of $1,000 against him; that the de- 
fendants were guilty of a breach of said 
bond In that no part of said Judgment bad 
been paid; wherefore judgment for $1,000 
was asked against both defendants on said 
bond. Said suit was returnable to the March, 
1915, term of said court 

Thereupon the National Surety Company 
applied to one of the Judges of this court for 
an appeal under section 2043, as above 
stated. The application for the appeal sets 
out the foregoing facts, together with a copy 
of the record In the suit wherein Judg- 
ment was obtained, and a copy of the 
petition In the suit against appellant here- 
in on the bond, together with a copy of 
rule 6 of the Jackson circuit court, requiring 
a notice of the amended petition In the case 
against Fabianoff to be served upon him, 
which the plaintiff failed to do. 

The application for appeal further sets 
out that the amended petition In the case 
against Fabianc^ wholly changed the cause 
of action alleged against him in the original 
petition; that no notice of such change was 
ever served upon said Fabianoff as required 
by said rule, and that he had no notice 
thereof; that In said suit on the bond said 
plaintiff was attempting to proceed on said 
Judgment against Fabianoff as conclusive of 
the rights of the parties, and as binding and 
conclusive upon the rights of the National 
Surety Company as surety on said bond. It 
is further alleged in the application for an 
order granting an appeal that certain errors 
were committed wblch rendered the said 
Judgment a nullity ; that from an inspection 
of the record error was committed against 
the rights of Fabianoff and the National 
Surety Company which materially affects the 
merits of said action. 

[2] It thus appears that the National Sure- 
ty Company, appellant herein, was not a i>ar- 
ty to the suit in whlcb the Judgment was 
rendered on account of which the surety 
company claims to be aggrieved, and from 
which It appeals. Section 2038, B. S. Mo. 
1909, says: "Any party to a suit aggrieved 
by any Judgment" may take an appeal. 
Plaintiff, Vassllopulos, therefore moves to 
dismiss the appeal because the National ii\ire- 
ty Company la not a party to the suit ag- 
grieved by the Judgment. 

Prior ta tbe amendment of section 2038 In 
1891 it read: "Svery person aggrieved by 
any final Judgment or decision of any circuit 



court," etc., could take an appeal But the 
amendment of 1891 changed the section to 
read: "Any party to a suit aggrieved," etc 
Under tbe section as it formerly stood, giv- 
ing to "every person aggrieved" a right to 
appeal, the appellant herein clearly bad sucb. 
right Nolan v. Johns, 108 Mo. 431, 18 S. W. 
1107. And it migbt seem that the change to 
"any party to a suit" would take away sucb, 
right But in Thomas v. Elliott, 215 Mo. 
598, loc. dt 603, 114 S. W. 987, 989, the 
Supreme Court say they do not construe tite 
change in the statute as taking away from 
any one the right of appeal which he had 
under the statute as it formerly stood, even 
though the one says "every person," and the 
other says "any party to a suit." It is true 
that on page 604 of 215 Mo., on page 9S9 
of 114 S. W., the court say: 

"But, as we have already seen, the right o£ 
appeal given by that act was given only to a 
party to the suit. And, when we consider that 
the dominant purpose in the mind of the law- 
maker was to confer a right of appeal that 
would necessarily suspend the progress of the 
cause in the trial court and delay the final 
ji'dgment, we can well see why it should be lim- 
ited to a party to the suit then pending and 
undetermined." 

But these remarks were made in view of 
the fact that the appellant in that case was 
appealing from an order setting aside a sale 
in partition. He was tbe purchaser at the 
sale, and was not a party to tbe salt The 
statute at the same time it was amended as 
above was also amended to allow an appeal 
"from any interlocutory Judgments in ac- 
tions of partition." Tbe court by the re- 
marks last above quoted, meant merely to 
say that, as to this new groimd of appeal 
given by the statute, the only one who 
could avail himself of it and thereby suspend 
the proceeding before a final Judgment was 
reached must be a party to the suit But 
as to any one appealing from a final Judg- 
ment the amended statute left the same right 
of appeal that was given under the old stat- 
ute. 

This view is fortified by the remarks of 
the Supreme Court in State ex rel. v. Shelton, 
238 Mo. 281, loc. Clt 297, 142 S. W. 417, 
where In speaking of this change in the stat- 
ute the court say: 

"It will thus be seen that to meet the ends of 
justice we have given to the present act the 
same wide range of meaning imported b^ the 
language of the former act Hence decisions 
construing the former act are in point", 

As tbe bond on which appellant is surety 
binds appellant to "pay all Judgments" ren- 
dered against the principal for violation of 
duty as manager of an employment agency, 
and the Judgment complained of Is one of 
them, it would seem that the surety com- 
pany is aggrieved by the Judgment, and, be- 
ing aggrieved, has the right of appeal under 
our statute, construed as it is by the Su- 
preme Court Construed thus, the statute al- . 
lows an appeal to every person aggrieved, r^Q I ^ 
and therefore appellant oomea within its ^ 



Uo) 



PEPBK AUTQMOBIIiB OO, r. ST. liOPia UNKWST TRUST 00. 



m 



tezms, even thongb tbe bond on which it Is 
satetf was not given In a Judicial proceeding. 
In 2 Cyc 638, It Is said : 

TThe sureties in an official bond beeome parties 
tn the record by a judgment agalnfrt: the prin- 
cipal on the bond, and may appeal from such 
jvdinEcnt.'' 

But, wbetber or not a bond sacb as the 
one no\r tii question makes tbe surety n par^ 
ty to tbe record by operation of law, Btlll 
under our statute authorising appeals the 
sarety may appeal even if It be bound only 
according to the terms of Its omtract. That 
contract provides that the surety will pay 
the Judgment if the principal does not 
Hence the surety is aggrieved and has the 
light to appeal 

[3] Section 2043, authorising an appeal, 
nys tbe same shall not be granted "unless it 
appear from an Inspection of a copy of the 
record that error was committed," etc. It is 
urged that no error appears. Of course, for 
08 to decide that finally now would be to 
conclude tbe matter, or platform ourselves 
won that question, before the hearing of the 
aiqieal. We do not do this, but merely hold 
tbat apparently there is enough showing of 
error- to warrant an appeal being allowed so 
that it may be heard. 

[4] The last ground of tbe motion to dis- 
miss is that no notice in writing of the ap- 
peal was given to the respondent 20 days 
before the commencement of the term of the 
aH)elIate court to which such appeal Is to be 
sent, as provided by section 2046, B. S. Mo. 
1909. As before stated, the appeal was 
returnable to the October term, 1915, of 
this court. 

The suit against the surety company on 
the bond was brought January 12, 1915. Un- 
til then, or at least until service was ob- 
tained, tbe surety company presumably was 
without notice of the Judgment It applied 
to this court for an order granting an ap- 
peal on March 15, 1915. The respondent, 
Louis VassUopulos, on tbe date of the rendi- 
tion of the Judgment in his favor, December 
19, 1914. testified in the case that he lived at 
"305 Kansas Avenue." It appears, however, 
fTMn au afBdavlt attached to the motion to 
-dismiss, tbat VassUopulos resided at 305 Kan- 
sas avenue, Kansas City, KaiL, "continuously 
for about four years prior to December, 1915, 
when be left for Greeca The appellant has 
filed an affidavit stating that ever since tha 
jn-anting of said amieal appellant has made 
diligent effort and search to find the re- 
spondent in order to serve notice on h]m> but 
has been unable to do so. Tbe appellant had 
from March 15, 1915, to 20 days before the 
first Monday in October, 1915, to serve said 
notice. During all that time the residence of 
tespoadent vaa disclosed in the evidence 
taken at tbe trial, and he did not leave for 
Greece tUl December, 1915i. 

The right of ai^eal being purely stat- 
ntoiy, a penon to avail bimseU of any such 



right must comply with the requirements of 
tbe statute granting that right Mabopaulos 
T. Chicago, etc.. B. Co., 26« Mo. 249, 165 S. W. 
310; State ex rel. v. Broaddus, 216 Mo. 342, 
115 S. W. 1018. The affidavit saying it was 
impossible to find VassUopulos In order to 
serve notice Is vague and unsatisfactory, and 
does not show the facts as to the diligence 
claimed, even if such showing could be al- 
lowed to avail. 

The appeal therefore sbonld be dismissed 
for failure to comply with section 2046. 
Consequently the motion to dismiss must be, 
and is, sustained. All concur. 



PEPER AUTOMOBILE CO. v. ST. LOUIS 

UNION TRUST CO. (No. 14418.) 

(St Louis 0}urt of Appeals. Missouri. June fi, 

1916. Behearine Denied June 

20, 1916.) 

1. AcnoR «s»58(l)— ^UTTiNe Ca(tses. 

A Binele demand cannot be split and separate 
suits maintained thereon. 

[Ed. Note. — For other canes, see Action, Cent 
Dip. if 549-551, 553-562, 565; Dec. Dig. <S=> 



«=>592 — Bab — Spi-rrnsG 



53(1).] 

2. jcdohknt 
Causes. 

A judjrment in an action for a portion of 
a single demand bars a right 6f action t6 the 
residue thereof. 

[Ed. Note.— For other cases, see Jndgment, 
Cent Dig. § HOT ; Dec. Dig. «s>592.] 

3. Action «=»53(3)— Spuitotq Causes— BtJi^ 
NINO Account. 

An open continuous running account consti- 
tutes a single demand, which cannot be split 

[Ed. Note. — For other cases, see Action, Cent 
Dig. {§ 593-623; Dec Dig. <g=»B3(3).l 

4. Action <S=>53(3)— Sputtinq Causes— Run- 
NiNO Account. 

Evidence held sufficient to show that various 
items of debit for balance due on the purchase 
price of an automobile a(id for oils, repairs, and 
supplies, etc., constitute a running account, 
wliich cannot be split, although a portion there- 
of had been entered in a separate book and pre- 
sented by a separate bill. 

[B!d. Note. — For other cases, see Action, Gent 
Dig. {§ 593-628; Dec. Dig. <S=3>5S(3).] 

5. Appeal, ano Erbos <s=»173(9) — Rsrixw — 
Objections Not Raised on Tbial. 

Objections that recover; cannot be had on 
rnnning accounts because a portion thereof had 
already been recovered cannot be raised for tbe 
first time on appeal. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. $ 1102; Dec. Dig. <g=5l73{9).] 

6. Executobs and Administbatobs €=9251 — 
Disputed Oiaims — Pleading— -Objections 
TO SPLTTTina Deuano. 

In an application in probate coort for the 
allowance of a running account, formal pleadings 
are unnecessary to raise the objection that plain- 
tiff is attempting to split his demand, having al- 
ready recovered a portion of the same account 
[Ed. Note. — ^For other cases, see Executors and 
Administrators, Cent EKg. H 896-900; Dec 
Dig. <S=>251.] 

7. Tbial €s»150 — Deuubbeb to Bvidbnce — 
Objection to Sputting Cause op Action. 

Where it is shown by evidence received with- 
out objection that plaintiff's demand is a run- 
ning account on which recovery had been had 



C3>7or other caMi see sua* tapio sad KSy-NVUBER la »11 Key-Numbered Dlswts and tadaxes 



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Google 



ii6 



187 SOUTHWESTERN' feEPORTBB 



(Mo. 



of a part, an objection, though not pleaded, to 
recovery on the ground that a single demand 
cannot be split is properly raised by demurrer 
to the evidence. 

[Ed. Note.— For other cases, see Trial. Cent 
Dig. |§ 346-348; Dec Dig. «=150.] 

8. Triai. <g=>84(4y— Bvidbnce— OBiraaux Ob- 
jections. 

A general objection to the ndmisslon of an 
account does not sufficiently present the specific 
objection that plaintiff cannot recover because 
of splitting his demand. 

lEd. Note.— For other cases, see Trlal».Cent 
Dig. § 217; Dec. Dig. <E=»84(4).] 

9. Tbial 4=989 — EviDENCB — Motion to 

A motion to strike the account sued upon 
is appropriate to raise the question that plaintiff 
cannot recover because of having split a single 
demand. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. {{ 228-284; Dec. Dig. «8=389.] 

10. TBIAt 4=»143— EVIDKNCB— DiBEOTBD VkB- 
DIOT. 

The rule that where plaintiff makes out a 
prima facie case, the oral uncontrorerted testi- 
mony in behalf of defendant, no matter how 
strong and convincing, does not authorize a di- 
rected verdict has no application where unimr 
peached documentary evidence precluding a re- 
covery is adduced. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. S8 342, 343 ; Dec. Dig. ®=>143.] 

11. Account, Action on 4=>8 — Jubt Qttks- 
TiON — Indebtedness on Running Account. 

In an action on running account the in- 
debtedness, under conflicting evidence, held a 
question for the jury. 

* [Ed. Note.— For other cases, see Account 
Action on. Cent Dig. {{ 18-28, 30; Dec. Dig. 
<8s»8.] 

Appeal from St Lonis Circuit Court; Geo. 

C. Hitchcock, Judge. 
•rNot to be officially published." 
Action by the Paper Automobile Company 

against the St Louis Union Trust Company, 

executor. From a Judgment for the plaintiff, 

defendant appeals. Reversed. 

Leahy, Saunders & Earth, of St Louis, for 
appellant Jones, Hocker, Sullivan & Angert 
and Vincent L. Boisaubin, all of St Iionls, 
for respondent 

ALLEN, J. This is an action founded up- 
on a claim filed by respondent, a corporation, 
in the probate court of the city of St. Louis, 
against the estate of one Adolphns S. Peper, 
deceased. The claim, consisting of an ac- 
count covering the period from May 15, 1907, 
to July 15, 1909, aggregating $3,390.97, was 
disallowed by the probate court Upon plain- 
tiff's appeal to the circuit court and a trial 
there de novo, before the court and a jury, 
there was a verdict and Judgment for plain- 
tiff in the sum of $4,395.50, being the full 
amount of the claim with interest, and the 
case la here on the appeal of the defendant, 
executor. 

Plaintiff corporation was engaged in sell- 
ing automobiles and automobile parts, acces- 
vories, and supplies, and conducted an auto- 



mobile repair shop. The business was con- 
ducted by two young men, Clarence Peper, 
and Charles Peper, relatives of the deceased, 
Adolphus Peper, who were owners of the 
stock of the corporation. The company be- 
gan business in May, 1907, 'and Adolphus 
Peper at once began to deal «Ith it The 
account sued upon, which was entered by 
Clarence Peper In a book kept by him for 
plaintiff company, begins with an item, under 
date of May 15, 1907, <diarging a balance ot 
$300 due from Adolphus Peper on the par- 
chase of an automobile, the purchase price of 
which was $650. The account then continues 
with, various Items for repairs, parts, acces- 
sories, gasoline, oil, etc., furnished to Adol- 
phus Peper, and contains a number of items 
for each month from and Including May. 
1907, to and Including July, 1909. 

Plaintiff's evidence is that nothing was 
paid on the account; that when it bad run 
for some time, and had grown to about $900 
or $1,000, plaintiff tried to collect the amount 
due, but did not succeed; that the owners of 
plaintiff company — 1. e., Clarence Peper and 
Charles Peper— were prevailed upon by Adol- 
phus Peper, and In part by the tatter's 
brother, Fred Peper, to continue furnishing 
supplies and rendering senrlees to Adolphus 
on open account ; and that Mils were there- 
after sent to him, on certain occasions, to 
which he made no response. 

Though the account sued upon extends 
only to July 16, 1909, it appears that the 
course of dealing between plaintiff and the 
deceased, as shown above, continued long 
after that date. The evidence discloses that 
plaintiff furnished Adolphus Peper supplies 
or services, or both, in the months of August, 
September, November, and December, 1909, 
and In January, February, March, April, and 
September, 1910; the amount charged fior 
such supplies and services after July, 1909 — 
not included in the claim sought to be en- 
forced—being $399.36. Plaintiff's account 
with Adolphus Peper to and Including the 
month of July, 1909, was kept in the book 
introduced In evidence below; but the evi- 
dence Is that this book became filled, and that 
beginning with the items of August, 1909, 
the account was continued tn a new book 
which was shown to contain the above-men- 
tioned charges for the period beginning in 
August, 1909, and ending in September, 1910. 

In 1911 Adolphus 8. Peper was by the pro- 
bate court of the dty of St Louis declared 
to be of unsound mind, and that court ap- 
pointed Edwin W. Lee, Esq., guardian of his 
person and curator of his estate. Thereafter 
plaintiff presented to such curator a claim 
for $396.35, founded upon the said account 
of plaintiff with Adolphus Peper, which is 
said to have accrued subsequent to July, 
1909; L e., beginning August 13, 1909, and 
ending September 2, 1910. This claim was 
duly allowed by the probatfe court, and was 



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PEPBB A-VSOUOBILE CO. ▼. ST. XiOTTIS UNIOK TRUST CX>. 



Ill 



paid by tlie coiator to a persoa to whom It 
bad been assigned. 

It developed In plaintiff's case that the 
abore-mentloned claisk for $396.35 bad been 
ptesoited by Clarence Peper and Charles 
Peper, in behalf of the corporation, against 
the estate of Adolpbns Peper then In the 
hands of his cnrator, and that It had been 
dnly allowed and paid. The testimony of 
Clarence Peper and Charles P^er Is that 
the allowed <dalm was but "a small part 
of the bill"— "the last part of the bUl." And 
their further testimony (first brought out on 
cross-examination) is to the effect that the 
"entire bill" was not presented to the curator 
for the reason that they had been informed 
by relatives that the rents derived from the 
estate of Adolphus Peper, who was then 
confined in an asylum at considerable ex- 
pense, "were not sufficient to meet any such 
obligation as that." 

Defendant put in evidence, withont objec- 
tion, the allowed claim fbr $396.35 above 
mentioned; and the curator testified respect- 
ing Its presentation and allowance. It ap- 
pears that when the daim was presented 
to the curator he satisfied himself, by an ex- 
amination of plaintiff's book entries shown 
him (evidently contained In the "new book" 
mentioned), and othenvise, that the amount 
was Justly due and consequently waived no- 
tice and called upon the claimant to furnish 
evidence in support thereof. The curator tes- 
tified that this was the only claim presented 
to him. 

It was also shown that on 'December 19, 
1909, plaintiff company executed a note to 
Adolphns Peper for |l,a0O, for money ad- 
vanced by him to plaintiff company, and 
pledged two automobiles as security there- 
for. This unpaid note was found by the 
cnrator among the papers of Adolphus Peper 
within a folded insurance policy. There is 
considerable testimony in the record concern- 
ing the transaction attending the execution 
thereof, but it need not be here rehearsed. 

I. The only assignment of error which 
we need notice Is that pertaining to the ruling 
of the trial court on the demurrer to the 
evidence. It Is argued for appellant that the 
court should have peremptorily directed a 
verdict for defendant, as requested both at 
the close of plaintiff's case and at the close of 
the entire case, for the reason that the evi- 
dence conclusively shows that plaintiff split 
its original account which, it Is said, was 
an entire. Indivisible claim, by presenting 
the claim for $396.35 and causing it to be 
allowed against the estate of Adolphus Peper, 
non compos mentis; that such allowance of 
pcut of the entire account of plaintiff against 
Adolpbns Peper operates to preclude a re- 
covery on so much thereof as is involved in 
this actlcm. 

[1,2] It Is well setUed that a single de- 
mand cannot be split and separate suits 
maintained for various parts thereof Where 



the demand is essmtlally an entirety, bht 
one action may be predicated upon it Wag- 
ner T. Jacoby, 26 Mo. BiSi; Union, etc., Co. 
V. Xraube, 69 Mo. 355; Wheeler Savings 
Bank V. Tracey, 141 Mo. 262, 42 S. W. 946, 
64 Am. St. Rep. 505; Donnell V. Wright, 147 
Mo. 639, 49 S. W. 874; Bircher v. Boemler, 
204 Mo. 554, im S. W. 40; Rnndelman v. 
Boiler Works Co., 178 Mo. Ak>. loc. clt. 650, 
651, 161 8. W. 609. And If a Judgment Is 
obtained upon a portion of a demand of such 
character, the right of action Is gime as to 
the residue thereof not embraced within the 
Judgment. The Judgment will conclude the 
rights of the parties with respect to the cause 
of action arising upon the entire demand, 
whether the Judgment in fact includes the 
whole or only a Part thereof, in accordance 
with the maxim, nemo debet bis vexarl pro 
eadem causa. See Union, eta, Co. v. Traube, 
supra ; Hoffmann v. Hoffmann's Executor, 126 
Mo. 486, 29 S. W. 603; Puckett v. Annuity 
Ass'n, 184 Mo. App. 601, 114 S. W. 1030 ; Rund- 
elman v. Boiler Works Co., supra. While 
there is no conflict of authority as to the gen- 
eral rule against splitting a single cause of ac- 
tion, some dlfHculty is frequently encountered 
in determining whether a demand is single 
and entire, constituting but one cause of 
action, or arises oat of two or more separate 
and distinct causes of action. It Is said 
that: 

"The true distinction between demands or 
rights of action which are single and entire, 
and those which are several and distinct is, that 
the former immediately arise out of one and 
the same act or contract and the latter out of 
different acts or contracts." Alkire Grocer Co. 
V. Tagart, 60 Mo. App. loc. cit 393. 

"When there is an acco*nt for goods sold, or 
labor performed, where money has been lent to, 
or paid for, the use of a party at different times, 
or several items of claim spring in any way 
from contract, whether one only or separate 
rights of action exists, will, in each case, depend 
npon whether the case is covered by one or sepa- 
rate oonUracts. The several items may have 
their origin in one contract, as on an agreement 
to sell and deliver goods, or perform work, or 
advance money; and usually in the case of a 
running account it may b« fairly implied that 
in pursuance of an agreement on account may 
be opened and continued either for a definite 
period or at the pleasure of both the parties. 
But there mnst be either an eq>rees contract, 
or the circumstances must be such as to raise an 
implied contract embracing all the items to 
make them, when they arise at different times, 
a single or entire demand or cause of action." 
Alkire Grocer Co. v. Tafart, supra ; Ruddle v. 
Horine, 34 Mo. App. 616; Secor v. Sturgis, 16 
N. Y. 548. 

[3J The facts of the case before us are 
such. In our opinion, as to present no serious 
dUUculty on this phase of the case. In our 
Judgment plaintiff's entire account against 
Adolphus Peper, which ran from May 15, 
1907, to September 2, 1910, was oonclusively 
shown to- be sn open, continuous, running 
account which constituted but one single 
indivisible demand, and gave rise to but one 
cause of action. Not only are the drcnm- 
stancea such as to "raise on impu^.coa- 



ioogle 



112 



1S7 SOUTaWBSTERN aEFOSTBR 



0to. 



tract embracing all the Item*," the Implica- 
tion being that the account waa opened and 
continued Indefinitely in pursuance of one 
general agreement and understanding be- 
tween the parties, but it afflrmatlvely appears 
from the testimony of the owners of plaintiff 
company that the account was thus opened 
and continued, and throughout treated as 
one entire account. According to this tes- 
timony the account was merely opened and 
Adoiphus Peper was famished supplies and 
services whidi were charged to him. Bills 
were rendered to him from time to time after 
the account became "rather large." One of 
them was for $1,821.67; another was for 
$1,1>25.U7 ; and a later one was for $3,245.77. 
The account was not paid, but the owners of 
plaintiff company were induced to allow It 
to continue. When the book containing the 
items sued for in this action became fUled, 
the account was transferred to and con- 
tinued in the "new book." 'mere is no sug^ 
gestion that the account in this new lx>ok 
arose out of a separate contract, or that there 
was anything to distinguish that part of the 
open account from the remainder thereof, 
beyond the mere physical fact that it was 
entered in a different book, and this for the 
sole reason that the old l>ook was filled. 

On croBs-examinatioa Clarence Peper was 
asked: 

"How did you determine the amount you want- 
ed to collect was only $390 ($39C.35) at that 
time? A. Well, that ia the amount in the other 
book. Q. That was the amount in the other 
book? A. Yes; in the new book. The account 
only amounted to whatever it was, $390." 

Both Clarence Peper and Charles Peper 
repeatedly referred to the allowed claim as 
being but a suiall part of the entire "bill." 
And their testimony shows that they were in- 
duced to withhold the major portion of their 
bill, and that they presented to the curator 
merely the latter part thereof; the amount 
presented being determined solely by the fact 
that so much of the whole account was enter- 
ed in the new book. The fact that It was so 
entered did not separate it from the earlier 
portion of the entire running account so as to 
give rise to separate causes of action. 

Hi Kespondent, in reliance upon what 
was said by this court in Ruddle v. Horlne, 
supra, 34 Mo. App. loc. dt 022, 623, says 
that for aught that here appears the in- 
debtedness represented by the claim of $396.- 
35 may have been incurred under a separate 
and distinct contract from that under which 
the other goods and services were furnished, 
and that the burden was on plaintUT to show 
tliat the whole was furnished under one 
contract and constituted but one indivisible 
demand. This contention may be sufficiently 
disposed of by saying that the evidence, as 
we view it, affirmatively shows, beyond dis- 
pute, that the allowed claim of $390.35 was 
but a part of one open, continuous, running 
account, having its origin in one contract; 
and that jOaintifl merely selected this much 



of tbe account for representation to the cu- 
rator because of the fact that it happened to 
be contained in the new book. 

Where a recovery Is had of a part of an 
Indivisible demand it will be regarded as an 
election to accept that part for the whole. 
28 Cyc. 437. Bven where claims are payable 
at different times, as where Installments, 
arising out of the same contract, fall due at 
different times, it an action is brought when 
two or more of such installments are due, 
then all due must be included in that action, 
and U any be omitted the Judgment will 
operate as a bar to the maintenance of anotli- 
er action therefor. See Rundelman v. Boiler 
Works Co., supra, 178 Mo. App. loc. dt. 650, 
651, 161 S. W. 609, and cages cited. 

Under the authorities, supra, and the de- 
dsions in Bircher v. Boemler, 204 Mo. 554, 
103 S. W. 40, and FuUerton Lumber Oo. v. 
Massard, 144 Mo. App. 61, 128 S. W. 831, 
which are here much In point, plaintiff must 
be denied a recovery herein, as a matter 
of law, unless it be because of appellant's 
failure, as respondent contends, to properly 
raise this question in the trial court 

[6, J] II. It is very earnestly and ably con- 
tended by respondent's learned counsel that 
appellant has waived any right to complain 
of the splitting of th6 cause of action, if any. 
by failing to either plead. the former re- 
covery In bar or to make any distinct objec- 
tion on this ground in the trial court. It is 
true that this rule of law here invoked by 
appellant is enforced for the protection of 
the debtor; and he may waive its beneflts 
by expressly or impliedly consenting to the 
institution of separate actions where but 
one would otherwise lie, or by his conduct at 
the triaL And it is elementary that a party 
will not be permitted to adopt a theory in 
the appellate court not advanced in the trial 
of the case below. But we think that the 
proposition of law asserted and relied upon 
by appellant was squarely presented in the 
case below, and that, tmder the drcum- 
stances, the question was one to be deter- 
mined by the trial court in passing upon the 
demurrer to the evidence. 

Defendant did not plead the. former ad- 
judication ; 1. e., the allowance of the claim 
for $396.35, in bar of the present action. 
But the case arose In the probate court, and 
formal pleadings were unnecessary; and so 
far as concerns the matter ot pleading thft 
former recovery of a part of the account, It 
is sufficient to say that it came, into the case 
wltliout objection. Indeed it developed fully 
in plaintiff's own cas^ and was unqualiSedly 
conceded by the owners of plaintiff company 
who testified that the daim was presented 
to the curator and allowed by the probate 
court. And when defendant's counsel later 
offered the allowed claim it Was admitted 
in evidence without objection. It is ther«- 
fore wholly immaterial that the form^ r»> 
covery was ttot pleaded. T 

Hot it la Insisted thatL«pmee«Ht,«4-i»fifijOQlC 



m 



OBOSSLBT ▼. SUMKIT LUMBER CO. 



113 



so Ar aa this record sbowa, either by ob- 
jection, Instruction, or otherwise, distinctly 
raise the point now relied upon. It is said 
tliat tliere was no auggestion below that ap- 
pellant contended that the claim in suit and 
(iat previously allowed in the probate court 
together constituted one indivisible denjand 
which could not be split ; nor that the ad- 
judication in the probate court on a part of 
the whole account operated as a bar to the 
prosecution of the action predicated upon the 
remainder thereof. 

[7-9] While the account offered was ob- 
lected to, that objection was a mere general 
)b]ectloo and avails nothing. But when the 
iccount was offered the fact that the claim 
or $390.35 bad previonsly been allowed had 
lot appeared in the case. When this later 
ppeared in plaintiff's case, and was conced- 
d, and the facts concerning the nature of 
he account as a whole were developed, a mo- 
ion to strike oat the account previously ad- 
litted, based upon the proposition that plaln- 
H had split its demand, would have been 
ppropriate. However, under the drcum- 
ances, we are of the opinion that the mat- 
■r was one reached by the demurrer to the 
Idence. Not only was the splitting of the 
!maad and the former recovery shown and 
lly developed In plalntitTs case, but de* 
ndant put In evidence the allowed claim 
Ithout objection. Neither the cotwt nor 
lintiff's counsel could bav« had any doubt 
to the purpose of offering the evidence ad- 
ced which conclusively showed a former 
judication upon a part of plaintiff's en- 
e aoconnt. As the items of the allowed 
iim of $396.S5 were not Included In the 
im hi suit, the evidence mentioned constl- 
ed no defense to plaintiff's action, except 
im the theory that the splitting of the 
»mit by a former recovery upon a part 
reof operated to preclude any recovery in 
' present action. 

n Gorton v. Botts, 73 Mo. 274, it was held 
t a former Judgment, in an action between 
same parties, put in evidence, though not 
ided, was as conclusive in its effect as If 
lad been specifically pleaded by way of 
>PI>eI. In the case at bar the former ad- 
Icatlon came into evidence without objec- 
I— naturally so since plaintiff's own proof 
red the existence of the Judgment Un- 
the circumstances it was conclusive of 
fact that a recovery had been had of a 
t of the original account ; and if it con- 
Ively appeared that the entire account 
itituted one Indivisible demand, as we 
I, that was the end of plaintiff's case. 
I] While a prima fade case once made 
«>t be overthrown by mere oral testi- 
y, though nncontradlcted (Gannon v. 
lede Gaslight Co., 145 Mo. 502, 46 S. W. 
47 S. W. 907, 43 I* R. A. 505), It U not 
fhere, as here, documentary evidence Is 
iced which, standing unlmpeached, pre- 
ss a recovery. Nor do we think that 



plaintiff made out a prima facie case since 
plaintiff's proof showed the former recovery 
and showed too that the original account was 
such as to constitute an indivisible demand 
which could not be split into two or more 
causes of action. 

[11] III. Plaintiff's evidence tends to show 
that the whole account, which was allowed to 
accumulate to such proportion because of the 
relationship of the parties, was originally a 
valid Indebtedness. It is true that the evi- 
dence shows that the deceased advanced 
money to plaintiff company while the ac- 
count. It is said, remained unpaid ; and it is 
suggested that this is a "suspicious circum- 
stance" But plaintiff's evidence concerning 
this transaction makes It appear consistent 
with the testimony that the account was then 
unpaid and so remained. And It Is said 
that Adolphus P^er retained the two cars 
pledged with the note, of value greater than 
the Indebtedness which It evidenced. The 
matter would clearly be a Jury, question, were 
the case oth'erNvlse one for the Jury. 

Likewise plaintiff's evidence tends to dis- 
pel any Imputation of bad faith In presenting 
the small claim to the curator, and withhold- 
ing the major portion of the account and 
asserting a claim thereupon after the death 
of the alleged debtor. But by pursuing this 
course plaintiff has forfeited its rlfiht to re- 
cover on the claim In suit. To permit a far- 
ther recovery against the estate would not 
only be a dangerous precedent, but would be 
to run counter to the entire policy of the law 
on the subject in hand. 

It follows that the Judgment must be re- 
versed, and it is accordingly so ordered. 

BEYNOLDS, P. J., and NORTONI, J., con- 
cur. 



CROSSLET V. SUMMIT LUMBER OO. 

(No. 14403.) 

(St. Louis Court of Appeals. Missouri. June 

6, 1916.) 

1. Contracts <S=»28(1), 29 — Questions of 
Law and Fact^ Burden of Proof. 

The legal effect ' of the correspondence be- 
tween the parties to an alleged sale Is a question 
of law for the court, and the question whether 
defendant accepted the contract as proposed may 
become a question of fact for the jury, and the 
burden of showing that the proposed contract 
was accepted as made Is on the plaintiff. 

[Ed. Note.— For other cases, see Contracts, 
Cent. Dig. SJ 141-143, 1755, 1824; Dec. Dig. 
<&=>28(1), 20!] 

2. Pbincipai, and Agent iS=»70— Aqenct fob 
Adverse PaIrties. 

One cannot act as agent for two parties 
'Whose interests are antagonistic, ae in case of a 
'buyer and seller< 

[Ed. Note.— For other cases, »ee Principal and 
Agent, Cent Dig. g 146 ; Dec. Dig. iS=>70.] 

3. Corporations iS=>429— Representation bt 
Agent— Secret Insthdctions. 

Secret instructions given by a lumber com- 
pany to its officer, not known to a buyer who 
dealt with such officer, did not affect the compa- 



«=3For other csMf.M* smn* topl,c knd KSY-MUMBBSR In all Ka/.-N umbered DlseaU and Indej^ei 
187 S.W.— 8 



114 



187 SODTHWBSTESRN KEPORTE>R> 



(Mo. 



dj'b liability, unless tbe bayer bad knowledge 
of sncb facts tbat a reasonably itmdent man 
in tbe conduct of his business would have been 
led to make inquiry wbieb would have advised 
bim of such instructions. 

[Ed. Note. — For other cases, see Corporations, 
Cent Dig. {§ 1720-1723, 1726; Dec. Dig. «=> 
428.] 

4. COBPOBATIONS ^=3429— Refresbi«tatioit bt 

AoBNT— Question tob 3vb,y. 
In a lumber buyer's action for nondelivery, 
question whether plaintiff buyer bad knowledge 
of facts that would have led a reasonably pru- 
dent man to make inquiry as to the authority of 
the general manager of defendant company to 
take orders for his own sawmill in the name of 
the company held for tbe jury. 

[Ed. Note. — For other cases, see Corporations, 
Cent. Dig. iS 1720-1723, 1725; Dec. Dig. «8=9 
429.] 

5. Tbial <g=»253(10)— Instbttotion. 

In a lumber buyer's action for nondelivery, 
an instruction that, if the jury believed that tbe 
buyei* knew that tbe mill at C. was owned by the 
manager of defendant lumber company individ- 
ually, and, if they believed from the evidence 
that the directors of tbe lumber company, did not, 
in fact, authorize its officers or agents to sell the 
output of tbe C, mill in its name, their verdict 
should be for defendant, was correctly refused as 
entirely omitting any reference to defendant lum- 
ber company^s acts on which ratification of its 
manager s unauthorized selling from his own mill 
in the name of tbe company might rest. 

[Ed. Note. — For other cases, see Trial, Cent. 
Dig. §S 621, 622; Dec. Dig. ®=»253(10).] 

6. Sau:s ®=>418(3) — Action bt Buyer — 
Failube to Deliveb Lumbeb— Damages. 

In a lumber buyer's action for nondelivery, 
plaintiff was entitled to recover for lumber se- 
cured elsewhere by him, whether borrowed or 
bought, on the basis of its market value. 

[Eld. Note. — For other cases, see Sales, Cent. 
Dig. i 1181; Dec Dig. <S=»418(3).] 

7. Tbiai. #=9253(1)— iNBTBUcnoNs— Omission 
OF Facts, 

Instrucdons failing to present all the facts 
of the case for the consideration of the jury 
were properly refused. 

[Ed. Note. — For other cases, see Trial, Cent. 
Dk §1 613, 614; Dec. Dig. <3s>2S3a).l 

Appeal from St Louis Circuit Court; Wil- 
son A. Taylor, Judge. 

"Not to be officially published." 

Action by G. B. CroHsley against the Sum- 
mit Lumber Company. From a judgment for 
plalntifl, defendant appeals. Affirmed. 

Jndson, Green & Henry, of St. Louis, for 
appellant Eliot Chaplin, Blayney & Bedal, 
of St Louis, for respondent 

REYNOLDS, P. J. This is an action to re- 
cover damages for nondelivery of a lot of 
long leaf yellow pine lumber, known in the 
trade as "export lumber," said to hav« been 
purchased by plalutlfl of tbe defendant cor- 
poration, to be delivered at rarious dates, 
commencing in December, 1911, and running 
into February, 1912, at various named Flor- 
ida coast points. Ther« were five counts In 
the petition, one of the counts, however, the 
fourth, was dismissed by plaintiff at the dose 
of the evidence in the case. The trial was 



before the court and a Jury and at its coDclu- 
sion the Jury returned a rerdlct in the aggre- 
gate sum of 13,724.63. Judgment followins, 
defendant has duly appealed. 

It appears that the transaction on tbe part 
of defendant with plaintiff for the pnrchasA 
and sale of this lumber was, so far as de- 
fendant was concerned, conducted mainly by 
one A E. Silverthome, who was a director 
and the secretary and general manager of the 
company, although the sales manager, Mr. 
Goss, who was under the immediate direction 
of the secretary, also appears to have writ- 
ten some of the letters. The defendant is a 
corporation organized and doing business' un- 
der the laws of the state of Arkansas but its 
principal office and chief place of business Is 
at St Louis, where it was represented by the 
secretary, the president and other genial of- 
ficers and directors residing outside of this 
state. The several transactions here referred 
to were carried on by correspondence between 
plaintur, who had his office in New York, and 
the Summit Lumber Company, generally from 
its St Louis office. The Summit Lumber Com- 
pany was engaged in the business of mannf ac- 
turlng and selling lumber. It liad a mill at 
Randolph, La., and one at Columbus, Miss. 
A. K. Silverthome was the president, W. E. 
Silverthome, vice president, and A EL Silver- 
thome, secretary and general manager, as be- 
fore stated; and while the president and 
possibly other officers bad been in St Lrouls 
occasionally, A B, Silverthome was located 
there and In general diarge of the business 
of the corporation. The beginning of tbe cor- 
respondence appears to have been In August 
1911, when Mr. Ctoss, the general sales man- 
ager, wrote plaintiff to tbe effect ttiat tbe 
Summit Lumber Company was in a position 
to ship from "their mill" at Carrabelle, Fia., 
"export lumber," meaning long leaf y<ellow 
pine. The letter head upon which this was 
written, as far as It is here necessary to 
note, was as follows: 

"Summit Lumber Company 

"Incoriwrated 

"Manufacturers Soft Short Leaf Yellow Pine 

"Soda Dipped and Steam Dried 
"Mills 

"Summit Lumber Co^ Randolph, La. 
"Interstate Lumber Co., Columbus, Miss. 
"Carrabelle Saw Mill Oo^ Carrabelle. Fla. 

"St Louis, Missouri. 
"Quotations subject to change without notioe. 
All contracts and agreements are contin- 
gent upon strikes, accidents and other occur- 
rences beyond our control. All con- 
tracts are subject to the approval of the 
general office at St Louis." 

The Summit Lumber Company had no mill 
at Carrabelle, Fla., that mill being owned by 
a corporation in which A. E. BUvertbome 
Was the principal and eontrolling stockholder. 

Some of the correspondence was by tele- 
graph and while many of tbe telegrams were 
signed in the name of the Summit Lumber 
Company, others were in the name of 



#=3For other c«m« see tarn* topic and KBY-NUMBBR in all Key-Numbered Dlgesta and Indesw 



o 



Ua) 



OAOBBIXY r. BtrMMTT LCTMBIiiR 'OO. 



116 



SllTerOiome. Tbe letters and telegntma iroai 
plataitlff to defendant were generally address- 
ed to tfae Summit Lamber Company, some- 
times to A. B. Sllverthome, at St Lonls, sev- 
eral of tbem, however, being addressed to A. 
E. Sflverthome, care Garrabelle Saw Mill Co., 
Carrabelle, Fla. One or more of tbe tele- 
grams were addressed to A. B. Sllverthome 
at Cincinnati, Ohio, and others to him at 
other places. 

While in a letter to A. 'E. SUvertbortifl, the 
then president, A. K. Sllverthome, cautioned 
A. E. Sllverthome against Inixing np the busi- 
ness of the Summit Lumber Company with 
the Carrabelle Company, and in another for- 
bid him to use the name of the Carrabelle 
Company on the letter heads, it does not ap- 
pear that any notice of these, or limitation of 
the powers of A. E. SUvertborne, was given 
to plaintiff or the public and the same letter 
head seems to have been used throughout the 
correspondence. 

Along the first' of January, 1912, a change 
in the officers of the Summit Lumber Com- 
pany was made and Mr. J. S. BlackweU be- 
came its president, A. E; Silvertborne being 
retired as an officer and director. On Jan- 
aary 17tb, 1012, Mr. BlackweU, as president, 
wrote to plaintlfr on tbe letter head thereto- 
fore in use by the Summit Lumber Company 
and which we have set out, in reference to 
an order for the shipments of the export lum- 
ber covered by the order, to the effect that 
the Summit Lumber Company had nothing to 
do with this matter and requesting plaintifF 
to correspond directly with the Carrabelle 
Saw Mill Company or with Mr. A. E. Sllver- 
thome, president of ttiat company, adding 
that at the time of the writing of the letter 
Mr. A. E. Sllverthome was at Carrabelle, Fla., 
and would be there for several days. By an- 
other letter of January 22nd, 1912, Mr. Black, 
well, as president of the Summit Lumber 
Company, and on the same letter head which 
had been In use in previous correspondraace, 
wrote to plaintiff asking for a copy of any 
acceptance by the Summit Lumber Company 
of an order designated as "Bllla," this being 
tbe code term designating a particular order 
for export lumber. Mr. BlackweU further 
wrote In this letter that the Summit Lumber 
CcHnpany had nothing whatever to do with 
Carralwlle Saw Mill Company or its orders 
and that since January 10th (1912), the Sum- 
mit lumber Company had nothing whatever 
to do with Mr. A. E. Sllverthome; that it 
was impossible for anyone to think that the 
Summit Lumber Company could fill this or* 
der from their Bandolph, La., saw mill, and 
that they had nothing whatever in the office 
to show that tbe order had ever been accept- 
ed. He farther writes: 

"Whatever business you have with Mr. A. E. 
Sllverthome of the Carnbelie. Saw Mill Com- 
pany does not concern the Sunimit Lumber Com- 
pany in the least ^nd we do not See how you can 
hold the Summit Lumber Company for this 
order and w« refuse toi have anything to d6 with 
tfaa OfdsT: i'h »fif way, vivp^fur .for>»r'' j, , . . 



This letter Was wrltten'afbar all the or- 
ders for long leaf yellow pine lamber had 
been sent to tbe Summit Company, and was 
signed by Mr. BlackweU, as president and 
general manager. Following other corre- 
spondence In which the new management of 
the Summit Lumber Company repudiated all 
the transactions of A. E. Sllverthome in con- 
nection with these orders of the plaintiff, this 
action '^as commenced. None of the lumber 
which plaintiff claimed had been contracted 
for was ever delivered, and It appears that 
tbe only lumber of the kind wanted by plain- 
tiff, that is long leaf yellow pine, which was 
manufactured by any of the mills named ou 
the letter head of the Summmlt Lumber Com- 
pany, was manufactured by the Carrabelle 
Saw Mill Company, at Carrabelle, Fla. 

There was evidence in the case on the part 
of defendant, tending to show that plaintiff 
knew during the time he was «ideavoring 
to contract for this export lumber, and wh&e 
corresponding and giving orders for this 
lumber, that the Carrabelle Saw Mill Com- 
pany, while a corporation, was the individ- 
ual property of A. E. Sllverthome, he own- 
ing all or the controlling stock In It, the Sum- 
mit Lumber Company and its officers, other 
than A. E. Sllverthome, having no connection 
with It While plaintiff admitted tbat be 
knew this, be also testified that he under- 
stood that A. E. Sllverthome also owned tbe 
controlling interest In the Summit Lumber 
Company. 

In the first instmctlon given at the in- 
stance of plaintiff tbe court told the jury, 
as a matter of law, that there was a contract 
of purchase and sale shown by the letters and 
correspondence between the parties. This Is 
assigned as error. 

[1] While tbe legal effect of the corre- 
spondence is always a question of law for 
the court (Wilbur Stock Food Co. v. Bridges, 
leO Mo. App. 122, loc. dt 131, 141 S. W. 714, 
and cases there dted), the question whether 
defendant had accepted the contract as pro- 
posed may become a question of fact for 
the Jury, and the burden of showing that 
the proposal as made was accepted as made, 
would be on plaintiff (Robertson v. Tapley, 
48 Mo. App. 239, loc. dt 242). But tn the 
case at bar there was no room for submis- 
sion of any such issue to the Jury. The cor- 
respondence discloses an unequivocal accept- 
ance — a meeting of the minds of the con- 
tracting parties. That was not so in the 
Robertson Case, supra, and hence In that 
case it was a question for the Jury. Here 
the trial court properly Instructed on the cor- 
respondence, that there was a contract 9 
Cyc. p. 776, subsec. 2. 

The appellant asked the following Instmc- 
tlon:. 

. "The court instructs you that if you beKeve 
from the evidence that plaintiff, Crossley, knew 
in November and December, 1911i that the miH 
at Carrabelle, Fla., was owned by A. E., SU- 
jr^rtl^ome individually, and if yon further bejjieve 



ioogle 



116 



167 SOUTHWSSXKRN Bfi^QUIXR 



(Ma 



from the evideiKM that the board of dlrectoni of 
the Summit liumber Company did not In fact 
authorize its officers or agents to sell the output 
of the said Carrabelle Mill in its name, then jour 
verdict herein must be for defendant on all the 
coimts of the petition." 

[2] This was refased and error Is assigned 
on the refusal. The theory upon -which this 
Instruction was asked was that if resp(»ident 
knew of the Individual ownership by A. E. 
SilTerthome of the Carrabelle Mill, fhea he 
was put on Inquiry as to the authority of A. 
E. Silverthorne, as an agent and officer of 
appellant, to bind the latter In contracts for 
the benefit to himself for the Carrabelle Com- 
pany. But there was more in this case than 
a knowledge of the private interest of A. E. 
Sllverthorne. It is a well settled general rule 
that one cannot act as agent for two parties 
whose Interests are antagonistic, as in case 
of a buyer and seller. See Lee v. Smith, 84 
Mo. 304, loc. dt. 309 (54 Am. Kep. 101), in 
wliich our Supreme Court held: 

"The law will not permit an agent's private 
interest to come between himself and his princi- 
paL Its actual presence always disables the 
agent from binding his principal in the transac- 
tion." 

See, also, White Sewing Machine Co. v. 
Betting, 40 Mo. App. 417 ; St. Louis Charcoal 
Co. V. Lewis, 154 Mo. App. 648, 136 S. W. 710 ; 
St. Charles Savings Bask v. Orthweln Invest- 
ment Co., 160 Mo. App. 369, 140 S. W. 921. 
But there are limitations in the application 
of this rule. 

[S] As presenting their view on this point, 
the trial court, at the instance of counsel for 
respondent, told the Jury that secret Instruc- 
tions given by defendant to A. E. Sllver- 
thorne "not known to the plaintlfC did not 
affect defendant's liability, unless plaintiff 
had knowledge of such facts that a reason- 
ably prudent man In the conduct of his busi- 
ness would have been led to make inquiry as 
to the said Instructions and said inquiry 
would have advised plaintiff thereof." While 
this is not as clear as It might be, we think 
that It substantially states the law as here 
applicable and gave the appellant the beneiit 
of its testimony as to the knowledge respond- 
ent had of the Individual ownership of A. E. 
Sllverthorne of the Carrabelle Mill. 

[4] It is to be said In the present case that 
there is no evidence of any express author- 
ity by the board of directors of the Summit 
Lumber Company, given to the secretary, to 
bind the Summit Lumber Company for any 
deals connected with the output of the Car- 
rabelle Saw Mill. But in Its letter heads 
which were used throughout the correspond- 
ence, the name of the Carrabelle Company 
appears as that of a mUl, the output of which 
(to say the least) was at the disposal of the 
Summit Lumber Company, and as we have 
said, it does not appear that any lack of con- 
trol of that was brought home to respondent 
or anyone else. Substantially all of the cor- 
respondenoe on the part of appellant was in 
its corporate name. It opened negotiations 
thtttnsh Mr. Goss, its general sales manager ; I 



all the orders for lumbw given by 'respond- 
ent were addressed to the Summit Lumber 
Company at Its St. Louis office ; no one, for 
the appellant, ever questioned the authority 
of the secretary, until after the close of the 
deals. E^en if plaintiff here had actual 
knowledge that the Carrabelle Mill was prac- 
tically the Individual property of A. Ei Sll- 
verthorne, we think that respondent even as a 
prudent man, was led by the conduct of ap- 
pellant's representative to believe be could 
deal with A. E. Sllverthorne for the output of 
the Carrabelle Saw Mill. 

In 2 Thompson on Corporations (2d Ed.) i 
1576, It is said: 

"The governing principle with reference to the 
general power of a manager is that where h? has 
the actual charge and management' of the busi- 
ness, by the appointment of or with the knowl- 
edge of the directors, the corporation will be 
bound by his acts and contracts which are nec- 
essary or incident in the course of the business, 
without other evidence of actual authority." 

In section 1679, It Is said: 

"W^here a general manager ts acting within 
the litae of his duty, or within the apparent scope 
of his employment, third persons m their deal- 
ings with him in the basiness of the corporation 
of which he has charge may rely on the appar- 
ent anthority with wnlch he is clothed." 

In Rosenbaum v. Gilliam, Assignee, 101 
Mo. App. 126. loa dt, 134, 74 S. W. 507, 509, 
our court said: 

"The principles of the law of agency in Mis- 
souri applicable to natural persons and legal 
entities are the same, and where an officer of a 
corporation has been put in control of its affairs 
and permitted to manage and conduct its busi- 
ness, his authority to bind the corporation will 
be inferred from the ostensible authority thus 
conferred upon him, and a party with whom 
such managing agent has dealt respecting the 
affairs of the corporation, where no knowledge of 
the want of authority is disclosed, may hold the 
corporation for the acts of the agent on its be- 
half, although the latter may transcend his au- 
thority." 

In Dadeville Union Warehouse & Whole- 
sale Grocery Ca v. Jefferson Fertilizer Co., 
69 South. 918, loc. dt. 919, defendants, whole- 
sale grocers, were held liable on a contract 
for the purchase of fertUlxers made by its 
general manager, the Supreme Court of 
Alabama saying that although parctaase of 
fertilizer was a new line of trade and priv- 
ately prohibited by the company itself, the 
company was bound by tiie act of Its gen- 
eral manager, the court adding: 

"Business is based largely on confidence, and 
any otHer rule would, as often noted by courts, 
permit a ruinous deception of innocent persons, 
and an unfair evasion of just liability by those 
who have chosen to give apparent anthority to 
their alter ego managers." 

These statements of the law are partlcn- 
larly applicable to the acquiescence by the of- 
ficers and directors of the appellant in the 
use of the letter head in which It was dis- 
tinctly set out that the (Carrabelle Saw Mill 
was one of the mills, the product of which 
was controlled by appellant While there Is 
no evidence that this use of the name was 
directly and expressly authorized. It appears 
that it was in use t&r ao long a time and 



ogle 



Mo.) 



THATCHER UfiPIiBMKNT A MSBCAJiTII^S CO. t. BRUBAKBR 



117 



throo^oat all of tbe correspondence coi> 
ceming tbese transactions and without any 
ranilDg to respondent or to the public gen- 
erally, that the Jur? might conclude that 
respondent had a right to a«sume that A. K. 
Sllrertbome, even if known to him to be 
>lie sole owner of the Carrabelle Mill, was 
lathorlzed to deal in the name of appellant 
[or its product. That is the natural infer- 
ence to be drawn from the use of this let- 
a bead and the correspondence concerning 
bese deals, commenced by the general sales 
oasager of the company, Jtfr. Goss, and car- 
led on subsequently by A. E. SUverthorue. 
In Hanover National Bank of New York v. 
imerican Dock & Trust Co., 148 N. T. 612, 
5 N. E. 72, 51 Am. St. Eep. 721, a case In 
iblcb a certificate had been issued by the de- 
uidant which bad been negotiated for value 
) a purchaser, the certificate, it being al- 
sed, baring been Issued by the president of 
itendant (a Mr. Stone), to his own order 
ithoot authority from the board of dlrec- 
is and in which it appeared that the presl- 
mt bad express authority to sign and Issue 
irehouse receipts for cotton deposited with 
e defendant by persons other than himself 
t bad no such authority to sign or Issue 
irehouse receipts in his own favor even for 
tton that had been actually deposited by 
n. It was held by the New Tork Court of 
peals, 148 N. T. loc. dt. 620, 43 N. E. 74, 
Am. St. Rep. 721: 

As the certificate on its face gave a purchaser 
h notice as ahoald put a prudent person upon 
niry in regard to Stone's authority, the plain- 
, in order to succeed, was required to show 
t implied authority had been conferred upon 
1 to issue certificates to himself for cotton 
t he bad actually deposited. If he was au- 
nzed. either expressly or impliedly, to issue 
tificatea to himself for his own cotton on de- 
it, and he issued a receipt, on bis i>ersonal 
)ant, for cotton not on deposit, • • • 'the 
adant would be liable to respond to a bona 
holder for value of such receipt.' • • • 
9 is upon the ground that an agent may bind 
principal within the limits of the authority 
1 which he has apparently been clothed in re- 
t to the subject-matter. Thus the authority 
n agent is enlarged, as to third persons, by 
lication, when the principal permits him to 
icts not expressly authorized. For the pro- 
on of innocent i>ersons the law will imply 
lority in an agent to do acts which, although 
idden by the principal before they are done, 
nevertheless, recognized by him as valid 
r they are done. If, through inattention or 
nriae, the princii>al suffers his agent to act 
od his authority without objection, he is 
id to those who are not aware of any want 
athority to the same extent as If the requi- 
power had been directly conferred. • • • 
ir such circumstances the principal is estop- 
from asserting the truth, by bis own con- 
is inducing third persons to believe that the 
t had due authority to act In the given case." 

> the Supreme Court of the United States 
In Martin v. Webb, 110 U. S. 7, loc. dt. 

J Sup. Ct 428, 433 (28 I/. Ed. 49), that 

t saying: 

rectors "have something more to do than, 
time to time, to elect the officers of the 

, and to make declarations of dividends. 



That which they ought, by proper diligence, to 
have known as to the general course of busi- 
ness in the bank, they may be presumed to have 
known in any contest between the corporation 
and those who are justified by the circumstances 
in dealing with its officers upon the basis of that 
course of business." 

Onr conclusloa Is that the instruction of 
the court at the Instance of respondent, and 
which we have quoted In part, correctly sub- 
mitted this question to the Jury. 

[J] We further hold that the instruction 
asked by appellant, and which we have set 
out, was correctly refused. That instruc- 
tion is Insuffldent in that it does not em- 
brace all the elements necessary for the con- 
sideration of the Jury in determining the 
authority of A. B, SUverthome to deal with 
his individual property In transactlonB In 
which he was representing the appellant. In 
that It entirely omits any reference to the 
acts of appellant on which ratification may 
rest. 

[I] Other points are urged for reversal, as 
for Instance the measure of damages and the 
refusal of the court to give two other in- 
structions asked by appellant. We do not 
think that there Is any merit In either of 
these assignments. As to the measure of 
damages. It Is urged that there should have 
been an Instruction for nominal damages as 
to the lumber covered by the first count in 
the petition, for the reason that there was 
testimony to the effect that this lumber bad 
been "borrowed" by the respondeot. This 
was disputed. But whether "borrowed" or 
bought, respondeat was certainly entitled to 
recover on the basis of Its market value and 
the evidence showed what that was. On 
that evidence it would have been error to 
confine the respondent to recovery of nomi- 
nal damages. 

[7] The other two Instructions which were 
asked by learned counsel for appellant were 
properly refused as they failed to present 
all the facts of the case for the consideration 
of the jury. 

We find no reversible error to the preju- 
dice of appellant and the Judgment of the 
circuit court is affirmed. 

NOBTONI and ALLEN, 33., concur. 



THATCHER IMPLEMENT & MERCAN- 
TILE CO. V. BRUBAKBR. 
(No. 12025.) 
(Kansas City Court of Appeals. Missouri. 
June 12, 1916.) 

1. Abbitration and Awabd <&=3l8— Aobee- 
MENT TO Submit— What Law Oovebns. 
Where the parties agreed in writiug to sub- 
mit their controversy in writing to arbitrators 
with knowledge that the hearing would be held 
and the award made and published at the office 
of the arbitrators, in Indiana, and the con- 
tract was neither entered into nor performed 
in Missouri, and did not become effective until 
filed in Indiana, the questions of the validity 



^aFor other cmaaa ■•• Mune topis «nd KSY-NUKBEE In All Key-Numbtred DlgMta ajid ladwM 



r gitized'by' 



1 



116 



18T SOUTHWESTERN RBPO&TEia 



(Mo. 



of the proceedings and Award are to be deter- 
mined by the law of Indiana relative to arbitra- 
tions. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. {{ 77-81 ; Dec. Dig. <&=> 
18.] 

2. Akbitbation and Awasd €s92— Sdbmib- 
8i0n— constbuctiow. 

Disputants may agree to a common-law ar- 
bitration, the statutory and common-law meth- 
ods of arbitration being regarded as distinct 
and concurrent remedies aiming at the aame re- 
sult. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. {{ 7-10; Dec. Dig. 
«=s>2.] 

3. Abbitbation and Awabd «=»2— Submis- 
sion— CoNBTKtJCTioN. 

A submission to arbitration in writing is 
within the statute, although there is no clause 
authorizing a circuit court judgment upon the 
award made pursuant to the submission, al- 
though at common law the submission agree- 
ment may be either parol or in writing. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. U 7-10; Dec Dig. 
«=s>2.] 

4. Abbitbation and Awabd ^=32— Subkib- 

eiON — CONSTBUCTION. 

Where the parties by writing agreed to sub- 
mit to arbitration a controversy arising out of 
a contract undet the law of Indiana which gov- 
erns the agreement, the contract not contain- 
ing a provision "that such submission be made 
a rule of any court of record designated in the 
instrument," it was an agreement for common- 
law arbitration. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. St 7-10; Dec. Dig. 
iS=>2.] 

6. Abbitbation and Awakd «=»85(3)— Ac- 
tion ON Awabd— Pleading and Pboof. 
In an action upon an award made upon a 
common-law agreement of orbitration, the bur- 
den is on the plaintifC to plead and prove not 
only the award but the submisraon, since the 
arbitrators have no power to bind the parties 
beyond the terms of the submission. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. {§ 497-499; Dec. Dig. 
«=»85(8).] 

6. Abbitbation and Awabd «=>85(3)— Ac- 
tion ON Awabd — Pboof or Aobe&ment. 

A formal agreement of submission to arbi- 
tration, defining the subject-matter of the arbi- 
tration and referring to a rejected agreement 
and its accompanying documents, treated by 
the committee as a bill of particulars, it be- 
ing assumed in the absence of evidence to the 
contrary that the particulars equaled in scope 
the subject-matter and cause defined in the 
formal agreement, was a sufficient proof of the 
agreement of arbitration. 

[Ed. Note. — For other cases, see Arbitration 
and Award, Cent Dig. Si 497-499; Dec, Dig. 
<S=»85(3).] 

7. Abbitbation and Awabd <S=>85(3) — Ac- 
tion ON AwABfD — Presumption. 

The same presumptions being indulged in 
favor of an award as apply to judgments of 
courts of record, an award will be presumed to 
be within the submission, unless the contrary 
expressly appears, placing the burden on a 
party objecting to an award to show its illegal- 
ity. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. fS 497-499; Dec. Dig. 
«=»86(3).l 



8. Abbitration and Awabd «s>3— Sdbhis- 
noN— REquianxa. 

All that is required of a submission to ar- 
bitration is that a cause of action shall appear 
to exist, in order that a frivolous or absurd 
claim shall not be the grounds of the proceed- 
ings. 

[Ed. Note/— For other cases, see Arbitration 
and Award, Cent Dig. H 11-21; Dec. Dig. 
<g=>3.] 

9. Abbitbation and Awabd «=»12— Abbitba- 
T0B8— Necessttt or Knowij:dqe of Law. 

The award of arbitrators on a submission 
to l>e decided according to the rules of an as- 
sociation cannot be attacked on the ground of 
a mistake of law, since arbitrators not being 
presumed to know the law. unless partiality or 
corruption, gross miscalculation in figures, or 
decision in a matter not submitted, be shown, 
the courts will not interfere either at law or in 
equity. 

[Ed. Note.— For other cases, see Arbitration 
and Award, Cent Dig. fS 32-61 ; Dea Dig. «=» 

Appeal from Circuit Court, Jackson Coun- 
ty; O. A. Lucas, Judge. 

Action by the Thatcher Implement & Mer- 
cantile Company against J. A. Brubaker, 
trading in the name of J. A. Brubaker & Co. 
Judgment for defendant, and plaintlH ap- 
peals. Reversed and remanded. 

Grant I. Rosenzwelg, Chas. E. McCoy, and 
Sam M. Hutchison, all of Kansas City, for 
appellant Guthrie, Gamble & Street, of 
Kansas City, for respondent 

JOHNSON, J. Plaintiff, a mercantile cor- 
poration doing business as a dealer in- bay In 
Thatcher, Ariz., brought this suit In the 
circuit court of Jackson county against de- 
fendant, a dealer in the same commodity in 
Kansas City, to recover upon an award ren- 
dered In favor of plaintiff by the committee 
on arbitration of the National Hay Ajssocia- 
tlon, which, as Its name implies, Is an as- 
sociation composed of dealers In hay doing 
business In the United States. The princi- 
pal office of the association where Ita arbitra- 
tion committee, consisting of five members, 
sits and transacts business, is in Winchester, 
Ind. 

Defendant was a member of the associa- 
tion, but plaintiff was not, when they entered 
into a contract which gave rise to the con- 
troversy between them; nor was plaintiff 
a member when this controversy was sub- 
mitted to the committee and the award was 
made and published. The contract provided 
for the sale by plaintiff to defendant of 60 
cars of alfalfa hay to be shipped from 
Thatcher via El Paso to New Orleans by a 
designated route. When the hay arrived at 
destination, defendant refused to receive it 
on the ground of plaintiff's failure to com- 
ply with the routing stipulation which are- 
suited in delay In the transportation and 
consequent loss In the value of the hay. 
A. controversy ensued which the parties, on 
July 3, 1912, agreed In writing to submit to 
the decision of the arbitration committee. 



-9For other caaet k«6 sun* topic and KBT-NDKBUiR In all Kcy-i^iimbered Dlgmti and Indna 



gle 



Ma.) 



THATCHER IMFLBMEirr ft MKHOANTILiB CO. ▼. BRUBAKBB 



119 



and this agreement, togetber with a mass of 
documentary evidence and a written state- 
ment of plaintiff's dalm, were forwarded to 
the committee at Winchester. The commit- 
tee received and filed the agreement and ac- 
companying documents, but refused to pro- 
ceed unless the parties would make out, sign, 
and file a written submission of the con- 
troversy on blanks conforming to the rules 
of the committee. Pursuant to this ruling, 
a new agreement to submit the pending con- 
troversy was drawn on an approved blank, 
was signed by plaintlfC at Thatcher, and by 
defendant at Kansas City, and was forward- 
ed to and filed with the committee at Win- 
chester. It recited that: 

"A controversy has arisen betweea the com- 
plainant and J. A. Brubaker of Kansas City, 
Mo., • • » Qyer the purchase of sixty oars 
of hay by J. A. Brubaker from the complain- 
ant, as more particularly set out in the agree- 
ment for arbitration not on the blanks of tlie 
Kational Hay Association but now on file with 
the secretary of the associatioD in connection 
with the papers setting forth the contention of 
the complainant and the evidence in support 
thereof, and followed with the stipulatiun of 
the parties "to submit hereinbefore referred to 
differences and controversies to the arbitrament 
and decision of the committee on arbitration and 
investigation regularly appointed by the Na- 
tional Hay Association or any three of them 
who may be present at the time fixed for the 
hearing or who may concur in the finding of any 
one of them according to the by-laws, .rules and 
regulations of said National Hay Association, 
and we do further authorise and empower the 
caid committee • * • or any three of them 
who may be present at the time fixed for the 
hearing, or wlio may concur in the finding of 
any one of them to arbitrate, award, adjust and 
determine the differences and coutroversiei; now 
existing between us for the mutter aforesaid. 
We do further agree that the award so made 
» • • shall in all things by us •• * be 
well and faithfully performed, that wo will 
stand to and abide by and fulfill the same and 
that we will pay whatever sum of money may 
be awarded as aforesaid, and further that we 
will abide by the by-laws, rules and legula- 
tioDS of said National Hay Association relating 
to arbitration. And we do hereby release the 
said committee jointly and severally from any 
and all daku or demands by reason of error 
in jndgment or findings of law." 

Tbla agreement Is In evidence, but for 
some reason the Informal agreement of July 
3, 1912, to which It refers for a more par- 
ticular statement of the ctwtroveray, was not 
introduced in evidence. 

The committee, without taking and sub- 
scribing to an oath and without hearing any 
testimony or arguments of the parties, but 
proceeding solely from an Inspection of the 
written statements and documents filed by 
the respective parties, made and published 
on November 7, 1918, the following written 
award, signed by four of tte five members 
of the committee: 

"After reviewing carefully the entire plead- 
ings and evidence with rebuttal and surrebuttal, 
we, the undersigned members of the arbitration 
committee, find as follows: 

"Citation 1. The original contract was not 
complete and was faulty, it not being in accord- 
ance with National Hay Association trade rule 
Na 1, wibich reads as follows: 'It shall be the 



dtrt^ of both buyer and seller to include in 
their original articles of trade, whether con- 
ducted by wire or mail, the following specifica- 
tions: Numbers of cars or tons. Number of 
bales. Size of bales. Grade of hay or straw. 
The point of shipment or delivery or rate point. 
The time of shipment or delivery. The routo 
and terms, except as follows: The specifications 
of rule 1 shall apply except in cases where the 
buyer and seller nave been trading on agreed 
terms and conditions, in which event it shall be 
sufficient for the words "usual terms" to be 
used in telegrams, and the use of such words 
shall imply that such terms and conditions as 
govern previous trades of like character shall 
govern.' 

"Citation 2. Trade rule No. 8, in the absence 
of a proper confirmation, shall govern this 
transaction. This rule reads as follows: 
' "Terms of sale" shall mean that the weights 
and grades of shipment shall be determined by 
the terminal or destination market rules, un- 
less otherwise specified at time of the sale.' 

"Citation 3. The shipper violated this con- 
tract when he assumed authority to divert cars 
without instructions from buyer. 

"Citation 4. The committee considered the 
buyer. J. A Brubaker & Co., was justified in 
repudiating this contract inasmuch as the ship- 
per violated his contract as set out in cita- 
tion 3. 

"Citation 5. The committee decided unani- 
mously that In view of the fact that had the 
defendants handled this hay as per original 
contract, they would have suffered a loss of 
$2.00 per ton on 1,437,325 pounds, by reason 
of decBne in the market and we, therefore, as- 
sess loss against the defendants in the amount 
of $1,437.32 with interest at 6 per cent, from 
May 81, 1912, until November IS; 1913, making 
a total amount due the plaintiffs of |1,563.09, 
which should be paid within fifteen (IS) days 
from the date of award." 

As might be exi)ected, neither party was 
satisfied with this award, which we must re- 
gard as the product of a faithful observance 
by the arbitrators of the stipulation of the 
parties that their dispute should be settled 
by the rules and laws of the association, 
and not by the principles and rules of the ju- 
ridical contract law of the land. 

The contract of sale was pronounced 
"faulty" because the parties, one of whom 
was a stranger to the association, had not 
drawn It In accordance with the laws of the 
association; but It escaped being denounced 
as void, and the arbitrators found that plain- 
tiff had breached Its terms by diverting the 
shipment to another route without the con- 
sent of defendant, and ruled that defend- 
ant was justified by such breach in rescind- 
ing the contract and refusing to accept the 
Iiay. This would have ended the case in fa- 
vor of defendant in a court of law; but the 
committee, In an honest ettort to do what 
they conceived to be complete justice, found 
that, if plaintiff had fully performed the 
contract and defendant had received the hay 
at New Orleans, he would have lost $2 
per ton, or $1,437.32, and adjudged that de- 
fendant, though fully justified in rescinding 
the contract, must, nevertheless, pay over to 
plaintiil the amount of the loss he would 
have sustained. Ooncladlug It was wiser to 
take this half loaf than to risk all by refus- 
ing tt, plalntUt .acccs>ted th* award and 



ioogle 



120 



187 SOUTHWESTBRN BSSBOtiTER 



(Mo. 



broagbt this rait to enforce It Feeling tbat 
the Juridical law which, at first, he despised 
but now applauds, would have given him a 
complete victory under the committee's find- 
ings of fact, defendant seeks to escape the 
award by attacking Its validity. His an- 
swer interposes a number of defenses, but 
In bis brief and argument he contends: 
First, that the arbitrators were required "to 
keep inflexibly within the limits of the par- 
ticular matter submitted to them in the sub- 
mission agreement," and since plaintiff, upon 
whom devolved the burden of proving not 
only the award but also the submission 
agreement containing the matters submitted 
to the committee, failed entirely to prove 
that agreement, there was such a failure of 
proof as to preclude a recovery on the award; 
and, second, that "the award Is Inconsistent 
on its face, and therefore is invalid." The 
alleged Inconsistency consists of the error 
of law Involved In the award to plaintiff In 
the face of the finding that defendant was 
not In the wrong but was justified in refus- 
ing to receive the hay. 

At the close of plaintiff's evidence, the 
court directed a verdict for defendant, where- 
upon plaintiff took an involuntary nonsuit 
with leave, and in due course of procedure 
brought the case here by appeal. 

[1-4] Tbat the parties agreed in writing to 
submit their controversy to arbitration and 
chose the arbitration committee of the Na- 
tional Hay Association as their arbitrators, 
with the knowledge that the hearing would 
be held and the award made and published at 
the office of the committee in Winchester, 
Ind., are conceded facts which compel the 
conclusion tbat the questions of the validity 
of the proceedings and award are not to be 
determined by the law of this state relating 
to arbitrations. An agreement to arbitrate 
a dispute is a contract (Searles v. Lum, 81 
Mo. App. 611, and cases cited), and, since the 
contract in question was neither entered in- 
to nor performed in this state, there is no 
ground upon which it might be pronounced a 
Missouri contract. It did not become effec- 
tive as a contract until it was filed with and 
accepted by the committee In Indiana, and, 
since it was made and performed in tbat 
state, the question of its validity must be 
judged by the laws of that state. So Judged, 
its terms disclose an agreement for a com- 
mon-law and not a statutory arbitration. In 
this state the right of disputants to agree to 
a common-law arbitration is recognized — the 
statutory and common-law methods of ar- 
bitration being regarded as distinct and con- 
current remedies aiming at the same result 
— and the test of whether the parties in- 
tended a common-law or a statutory arbitra- 
tion is the form of the agreement of submis- 
sion, i. e., whether it was parol or in writ- 
ing. It was held by the Supreme Court, in 
Bridgman v. Bridgman, 23 Mo. 272, that a 
submission to arbitratloh In writing is with- 
in, the statute, alUiough there is no clause 



authoTlzlng a drcnlt court Judgment to be 
entered upon the award made pursuant to 
the sutHnission. See, also, Hamlin v. Duke, 
28 Mo. 166; Wolfe v. Hyatt, 76 Mo. 156; 
Williams v. Perkins, 83 Mo. 379; Searles v. 
Lum, supra, 81 Mo. App. loc. clt 610; Trip- 
lett V. Sims, 89 Mo. App. loc. dt 330; Co<*ran 
V. Bartle, 91 Mo. loc. clt. 644, 3 S. W. 854; 
Tucker v. Allen, 47 Mo. loc. dt. 490. At 
common law the submission agreement may 
be either in parol or in writing. Searles v. 
Lum, supra. In Indiana, an agreement of 
submission to be regarded as one for a stat- 
utory arbitration must be in .writing and 
must provide "that such submission be made 
a rule of any court of record designated in 
such instrument." Boots v. Canine, 58 Ind. 
450. In that case the court held the agree- 
ment "which was in writing to be an agree- 
ment for a common-law arbitration because 
of the absence of the second of "the two es- 
sential requisites to a statutory arbitration." 

[6] In an action, such as this, upon a com- 
mon-law award, the burden is on the plain- 
tiff to plead and prove, not only the award, 
but also the submission. It is eleuientary 
that arbitrators have no power to bind the 
paities beyond the terms of the submission 
(Lorey v. Lorey, 60 Mo. App. 420), and "if 
they assume to act on questions not submit- 
ted, or fail to follow the directions in tlie 
submission in a material point, their award 
In reference to such matters will not be bind- 
ing, either on questions of law or of fact." 
Squires v. Anderson, 54 Mo. 193, and cases 
dted. The submission furnishes the source 
and prescribes the limits of the arbitrator's 
authority, and a failure to prove the agree- 
ment for submission is fatal to a recovery 
upon the award. 3 Cya 674. 

[(] But plaintiff did prove the agreement 
under .which the cause in controversy was 
submitted to the arbitrators, and its failure 
to introduce the rejected agreement which, 
with its accompanying documents, was treat- 
ed in the formal agreement and held by the 
committee as a mere bUl of particulars, and 
their supporting evidence, was not a failure 
to prove the terms of the submission to which 
the documents under consideration bore the 
relationship of mere evidentiary exhibits. 
The formal agreement defined the subject- 
matter and cause of action to be submitted 
as "a controversy between the parties over 
the purchase of 60 cars of hay by defendant 
from plaintiff," and, while it may be conced- 
ed that the award could not stand as to mat- 
ters not embraced in the bill of particulars 
to which the agre^nent referred, we must 
assume, in the absence of a showing, to the 
contrary, tbat the particulars in thdr totali- 
ty equaled in scope the subject-matter and 
cause defined In the formal agreement; that 
is to say, they included every part of the 
entire controversy which had arisen between 
the parties "over the purchase of 60 cara 
of hay." 

[7] The same presumptions must 



cara t 

be In- O 



Uo.) 



SOUTHWEST JfAT. BANS QP KANSAS OITT ▼. MoDBRMAND 



131 



dalged in taror of aa award that apply to 
Jndgments of courts of record, and tbe party 
objecting to tli« award must sbow tbe fact 
of Ite iUegallty. Kendriek v. Tarbell, 26 Vt. 
416l An award will be presumed to be with- 
in the anbmlaslon unless tbe contrary ex- 
pressly appears (Bush ▼. Davis, 34 Mich. loc. 
dt 19S), and to embrace all that was, and 
nothing that was not, submitted (Dickerson 
T. Rorke, 30 Pa. 390). As is pertinently ob- 
served In Ebert, Bx'r, t. Eb«rt, Adm'rs, B 
Ud. 353 : 

"A more liberal and reasooable interpreta- 
tion is now adopted by the courts, than for- 
merly existed, as to awards. Every reasonable 
intendment will be made in their favor, and 
a constmction given to them that will support 
them, if possible, without violating the rules 
adopted for the construction of instruments. 
It will be intended that the arbitrators have 
not exceeded their powers; that all matters 
have been decided by the arbitrators, unless 
the contrary shall appear on the face of tbe 
award; that it is certain, final, and legal. 
• • • linless, therefore, it aball appear up- 
on the face of the award that tbe arbitrators 
have exceeded their powers, it will not be in- 
tended that they have, for every intendment will 
be made in favor of the award.' " 

And It Is said In Sperry t. Rlcker, 4 Allen 
(Mass.) 17 : 

"It is the legal presumption, unless tbe con- 
trary appears, that arbitrators pursue the sub- 
mission and decide only the matters therein con- 
tained, and also that they decide all matters 
snbmitted to them." 

See, also, Hadaway r. Kelly, 78 111. 286; 
Tank v. Rohweder, d8 Iowa, 164, 67 N. W. 
lOOw 

[I] We hold that plaintiff proved the sub- 
mission, that on Its face the award shows 
DO material variance therefrom, and that In 
tbe absence of proof of the particulars to 
which reference was made- the presumption 
win be indulged that they were as broad as 
the snbject-matter defined In thei formal 
agreement. All that is required of a submls- 
rion to give it validity Is that a canse of ac- 
tion Sball appear to exist In order that a 
frivolous dalm, or one .which would be man- 
ifestly absurd, might not be, the ground of 
the proceedings. SkllUngs v. Coolidge, 14 
Mass. 48 ; Rlxford v. Nye, 20 Vt loc. dt. 137 ; 
Bnrchell v. Marsh, 17 How. 344, 15 L. Ed. 96; 
Uttteton ▼. Fatten, 112 Oa. 438, 37 S. E. 75S. 

[9] Passing to the second ground of attack. 
It must be conceded tbe assessment therein 
In favor of plaintiff could not be justified in 
law, but the parties agreed to submit their 
dispute to judges untrained In tbe law who 
Were to be governed in their decision by tbe 
laws and rules of tbe association relating to 
bnstness transactions between members. Cer- 
tainly defendant, who was a member, could 
have no reason to complain of his rights be- 
ing determined under the rules he selected In 
preference to the law of the land which be 
rejected ; but, If the agreement had not sub- 
stituted the association's laws and rules, the 
result would be the same In this case. A 
tribunal of this character Is not supposed to 



know anything of law, and unless partiality 
or corruption, gross ndsoalculatlon in a mat- 
ter of figures, or decision In a matter not 
submitted, be shown, the oourts cannot In- 
terfere, either at law or In equity. Relly v. 
Kussell, 34 Mo. 024; Shawhan v. Baker, 167 
Mo. App. loc. dt. 84, IBO S. W. 1096; Vaughn 
V. Graham, 11 Mo. 676; Brldgman v. Bridg- 
man, 23 Mo. loc. clt. 274; Shroyer v. Bark- 
ley, 24 Ma lot clt 352 ; Mitchell V. Curran, 
1 Mo. App. 453 ; Allen v. HIckam, 15C Mo. loc. 
dt. 58, 56 S. W. 300 ; 6 Corp. Juris, 180, 72, 
244 
As Is said In Vaughn v. Grnhafai, supra : 
"Arbitrators may be governed in their deci- 
sions by principles of equity as well as law, and, 
though their decision be not according to law, 
yet their report will not be set aside, unless it 
appears that they have misapplied the prind- 

Eles by which they profess to be governed, or 
ave been misled in the application of them." 

We cannot regard the error In question 
as anything more than a mere error of law 
to be expected of untrained judges who, au- 
thorized by the terms of tbe submission not 
to dedde the case according to law but ac- 
cording to their own conceptions of Justice 
and equity, have rendered a dedsion which 
expresses neither law, justice, nor equity, 
but was a kind of dedsion the parties bar- 
gained for. Courts will give no relief against 
errors of that sort Tbe court erred in di- 
recting & verdict for defendant. 

-The judgmttit is reversed, and the cause 
remanded. All concur. 



SOUTHWEST NAT. BANK OF KANSAS 

OITX V. McDEBMAND et al. 

(No. 11672.) 

(Kansas City Court of Appeals. Missouri. 
June 12, 1916.) 

1. Appeal and Ebror <3=»288— Pbeservation 
OF Objections— Motion fob New TbiaI/— 
Dbhubbbb. 

A motion to dismiss, regarded as a demur- 
rer, preserves itself without the aid of a motion 
for a new trial. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. § 1713; Dec. Dig. «s»286.] 

2. Dismissal and Nonsuit €=81(7)— Rein- 
statement— E kkect. 

Where defendants' motion to strike out an 
amended petition and to dismiss a suit as to 
them was sustained, the reinstatement of the 
case as to them put it back where it was before 
the dismissal. 

[Ed. Note. — For other cases, see Dismissal and 
Nonsuit, Cent Dig. Ji 188, 190, 192 ; Dec. Dig. 
«»81(7).] 

3. JUDOMBNT «=»106(1>— DbFAITLT IN PLEAD- 
ING. 

The fact that the term at which the defend- 
ants' motion to make the petition more definite 
and certain was sustained so as to require the 
filing of an amended petition expired before the 
amendment was made did not ipso facto work a 
judgment in favor of the defendants. 

[Ed. Note. — For other cases, see JudRment 
Cent Dig. f§ 162, 180; Dec. Dig. ®=>10C(l).l 



«=>For stber cases we sam* topic and KET-NVUBER in Ul Key-Numbered Dlsasu and Indues 



-3^ 



Google 



122 



187 SOUTHWESTERN RBPORTBa 



(Ho. 



4. Appeai, ard Bbbob «=>062— Discbetioi; 

OF TeIAL CoUKT— BEIMSTATKlOtNT OP DlS- 

uissKD Cause. 
The reinstatement of a dismissed cause was 
within the discretion of the trial court, where 
nothing appeared in the record proper to show 
that it was forbidden by law or rule of court 
or that its discretion was unsoundly exercised. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. S 3838; Dec. Dig. <S=»962.] 

6. LiuiTATiON OF Actions «=o127(1)— Time 
OF CoMUBNcma Action — Aiuendment — 
New Suit. 
Where an original suit to enforce a materi- 
alman's lien was brought In due time and its 
dismissal as to the defendant owners was set 
aside and the case reinstated at the same term, 
the case, upon the refiling of the amended peti- 
tion, was still in court, not as a new suit, but 
merely as a continuation of the original suit. 
[Ed. Note.— For other cases, see Iiimitation 
of Actions, CenL Dig. { B43; Dec. Dig. <8=» 
127(1).] 

Appeal from Circuit Court, Jackson Coun- 
ty ; Daniel BX Bird, Judge. 

"Not to be officially published." 

Suit by the Southwest National Bank of 
Kansas City against Frank R. McDermand 
and wife and the J. B. Neevel & Sons Con- 
struction Company. Dismissed as to defend- 
ants McDermand and personal Judgment 
against the defendant company, and plaintifC 
appeals. Beversed and remanded. 

See, also, 177 & W. 1106; 181 S. W. 998. 

Ellis, Cook 8e Barnett, of Kansas City, for 
appellant. Robinson & Qoodrlch, of Kansas 
City, for respondents. 

TRIMBLE, J. This was a suit to enforce 
a materialman's lien. The materials were 
sold by the Kansas City Terra Cotta Com- 
pany to the J. B. Neevel & Sons Construction 
Company, contractor for the erection of a 
building on lots in Kansas City owned by the 
defendants Frank R. and Myrtle A. McDer- 
mand, wlilch materials were used In the con- 
struction of said building. The first Item of 
the account was sold and delivered about 
July 1, 1912, and the last was on September 
17, 1912 ; the account then amounting to $1,- 
276. Not receiving payment, the terra cotta 
company, within four months from the ac- 
cruing of the account, filed its lien statement 
in proper form in the office of the clerk of the 
circuit court of Jackson county. Mo., after 
having given ten days' previous written no- 
tice thereof to the owners, the McDermands. 
Thereafter, on March 31, 1913, the terra cot- 
ta company assigned said account and all 
rights therein to the plaintiff bank. The lat- 
ter, within 90 days from the date of the fill- 
ing of the lien, brought this suit to enforce 
same. The suit was filed April 8, 1913, and 
summons was at once Issued and served upon 
all defendants, returnable to the May term of 
court On May 12, 1913, the McDermands ap- 
peared and filed a motion to make the peti- 
tion more definite and certain. At the No- 
vember term, November 29, 1913, this mo- 
tion was sustained. At the January term, 



January 19, 1014, the plaintiff filed an 
amended petition. At the same term, to 
wit, on February 9, 1914, the McDermands 
filed a motion to strike out this amended 
petition and to dismiss the suit as to tbena. 
At the same term, on April 15, 1914, this mo- 
tion was sustained, and the case was dismiss- 
ed as to the McDermands. At the same term, 
to wit, on April 12, 1914, plaintiff filed a mo- 
tion to reinstate the dismissed cause and for 
leave to file its amended petition. This mo- 
tion was on April 22, 1914, at the same term, 
sustained, and the amended petition filed on 
January 19, 1914, was again filed. At the 
same term, to wit, April 25, 1914, the Mc- 
Dermands again filed a motion to dismiss the 
case as to them. The first ground of said mo- 
tion, and the one upon which the court acted 
as shown by its order, was: 

"Because the record shows on its face tnat, 
if plaintiff ever had any right to establish and 
enforce a mechanic's lien upon property of said 
two defendants 'or of either of them, such right, 
if any, had expired, and this court was without 
jurisdiction to establish or enforce said lien, 
at the time when the last-amended petition in 
said action as against said two defendants was 
filed on, to wit, the 22d day of April, A. D. 
1914 ; and that said court is without juris- 
diction to establish or enforce a mechanic's lien 
on property of said two defendants o^ of either 
of them in said action." 

On June 13 (May term) 1914, the motion 
of the McDermands to dismiss as to them 
was sustained "as to the first ground." The 
cause was thereupon dismissed as to the 
McDermands, and judgment was rendered 
against the defendant construction company. 
Afterwards, at the same term, and on June 
2Sth, the judgment against the construction 
company was set aside, and the case was 
heard, after which a personal judgment was 
rendered against the construction company 
for the amount of plaintiff's demand; the 
Judgment reciting that, the "said cause hav- 
ing heretofore been dismissed by the court 
as to defendants Frank R. McX>ermand and 
Myrtle A. McDermand, the court declines tq 
hear evidence touching a mechanic's lien on 
the property involved, to which ruling of the 
court in favor of defendants Frank R. Mc- 
Dermand and Myrtle A. McDermand the 
plalntifl; excepts," and further adjudging 
that: 

"Said action havine been heretofore dismissed 
by the court on the 13th day of June, 1914, as 
to the defendants Frank R. McDermand and 
Myrtie A. McDermand, upon their motion, 
plaintiff recover nothing of the defendants 
Frank B. McDermand and Myrtie A. McDer- 
mand and have no lien upon the property of the 
said Frank R. McDermand and Myrtie A. Mc- 
Dermand, herein involved, and that the said 
Frank B. McDermand and Myrtle A. McDer- 
mand go hence without day and have judgment 
against the plaintiff lierein for their costs here- 
in expended, for all of which let execution issue, 
to which judgment of the court in favor of de- 
fendants Frank B. McDermand and Myrtie A. 
McDermand the plaintiff excepts." 

Without filing a motion for a new trial, 
the plaintiff appealed; the complaint being 



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SOUTHWEST KAT. BANK OF KANSAS OITT t: MoDERMAND 



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that the court erred In "diBmiaslos tb» case 
as to tbe MdJennuids and in refaslng to al- 
low plalntUf to enforce tbe lien against the 
property owned by defendants. 

The basis of defendants McDermands' mo- 
tion of February 9, 1914, to strike ont the 
amended petition, was that said amended pe- 
tition, whlcb was filed at a subseqnent term 
without leave of court, was not filed within 
the time, nor according to other terms and 
requirements, prescribed- by tbe roles of 
coait. The plaintiff, in its motion to vela- 
state tbe case, alleged matters outside tbe 
record as an excuse for plaintiff's failure to 
file the amended petition within tbe time 
required, and to show that tbe other condi- 
tions required by said rules were, in fact, 
ccmplled vt-lth. Evidence waa heard pro and 
too on said motion. 

Tbe first ground of defendants McDer- 
mands* motion to dismiss, dated April 25, 
1014, which said first ground is bereinabove 
quoted and is the ground upon which tbe 
court acted in again dismissing the case as 
to the owners, had for its basis the same rea- 
son as before, though obscurely stated in a 
somewhat different way from tbe other mo- 
tion. That evidence was heard covering that 
particular ground of said motion to dismiss 
is shown by the record, and that such evi- 
dence was necessary was, in effect, conceded 
by appellant In filing a bill of exceptions and 
printing tbe evidence adduced, as well as tbe 
motion, as a part of tbe abstract in this ap- 
peal 

As it appeared from tbe course pursued by 
both sides that evidence on tbe motion was 
necessary, this court held, in an opinion by 
Judge Johnson banded down June 14, 1915 
(177 S. W. 1106), that the motion could not 
be treated as a demurrer, and, since no mo- 
tion for new trial was filed, the appeal could 
not be considered on its merits, and afilrmed 
the Judgment. The view of this court was 
tliat, altbongh the motion to dismiss said 
"tbe record shows on its face" tbe matters 
relied upon as reasons for tbe dismissal of 
tbe suit, yet. If tbe motion depended upon 
evidence aliunde the record, it could not be 
treated as a demurrer; that tbe motion 
could not be made to "lift itself by its boot- 
straps," in this manner, from a motion to 
dismiss into the dignity of a demurrer to tbe 
petition. It seemed to this court that tbe 
decision of tl>e trial court upon tbe motion 
to dismiss called for tbe consideration of 
evidence; for While tbe trial court could 
talce Judicial Imowledge of its own rules and 
of tbe violation thereof, as if they were mat- 
ters appearing upon the face of the record 
proper, yet tbe trial court, in deciding wheth- 
er it would enforce tbe rule, was called upon 
to exercise, not an arbitrary, but a sound 
Judicial, discretion, and consequently wheth- 
er that discretion was exercised soundly or 
not would depend upon the evidence show- 
ing that there was good reason for not en- 
forcing the rula And, as said before, tbe 



appellant, by filing a bill of exoeptiiHis and 
preserving tbe evidence, appeared to have 
confessed that situation. 

On certiorari, however, tbe Supreme Court 
(State ex rel. Southwest Nat Bank v. Elllaon, 
181 S. W. 998) held that no evidence in re- 
lation to tbe first paragraph of tbe motion 
was necessary or even proper; that. If evi- 
dence was ottered of mattens of which the 
court could take Judicial Imowledge, tbe of- 
fering of suoh evidence was use),ess and In- 
effectual; that if there were offered, and 
the court received, evidence of things which, 
did not appear on the face of the record, 
such action vent beyond tbe scope of the 
motion and unwarrantedly broadened tbe is- 
sue which it tendered; and that tbe motion 
to dismiss was, in effect and should be treat- 
ed as, a demurrer. 

[1-3] As the motion to dismiss must be re- 
garded as demurrer, it preserves itself with- 
out tbe aid of a motion for a new trial. 
Shohoney v. Quincy, etc., R. Co., 231 Mo. 181, 
loc. dt 149, 132 S. W. 1069, Ann. Cas. 1912A, 
1143. Knlsely v. Leathe, 266 Ma 341, 166 S. 
W. 257. Taking the case, therefore, upon the 
record proper, and without considering the 
fact of the introdnction of evidence, which 
the appellant so carefully but unnecessarily 
(and, it seems, unfortunately), preserved in 
its bill of exceptions and brought to this 
court, we find no reason for sustaining a de- 
murrer to the plaintiff's amended petition. 
Although the defendants' motion to strike 
out and dismiss, dated February 9, 1914, was 
sustained on April 15, 1914, yet the court 
afterwards, on April 17, 1914, and at the 
same term, reinstated tbe case as to the own- 
ers of tbe property, and this put the case 
back where it was before the dismissal was 
made. 14 Cyc. 465 ; Brown v. Foote, 55 Mo. 
178; Miller v. Earle, 15 S. W. 916; Crane 
Co. V. Hawley, etc., (3o., 64 Mo. App. 603. 
The fact that tbe November term. 1913, at 
which defendants' motion to make the peti- 
tion more definite and certain was sustained, 
which required the filing of an amended pe- 
tition, expired before the amendment was 
made did not ipso facto work a Judgment 
In favor of defoidants, the McDermands. 
Robinson v. County Court of Morgan County, 
32 Mo. 428; Berry v. Zimmerman, 43 Mo. 
215 ; Ruch V. Jones, 33 Mo. 393, loc. dt 391 ; 
Plattsburg V. Allen, 84 Mo. App. 432; IjOu- 
than V. Caldwell, 52 Mo. 121. 

[4] The reinstatement of the cause by tbe 
court on April 17, 1914, was within tbe dis- 
cretion of the court, since no facts appear 
in the record proper to show that it was for- 
bidden by law, or rule of court, or that tbe 
discretion to reinstate was unsoundly exer- 
cised. 14 Cyc. 460; Cooney v. Murdock, 64 
Mo. 349; State ex rel. v. Bird, 22 Mo. 470; 
Davis V. Carp, 139 Ma App. 650, I0& dt 764, 
123 S. W. 1009; Crane Co. v. Hawley, etc., 
Co., supra. 

[S] Since the 
within tbe 00 days, 



original suit was brought (^ (^r^Q I p 
lys, and the dismissal of the Jv^^-'gi>- 



124 



187 SOU'XHWBSTXatN BXPOBTEB. 



Q£o. 



case was In effect set aside and the case re- 
Instated at the same term as that at which 
the dismissal order was made, which action 
was within the dlscretton of the court, so 
far as appears in the record proper, the case, 
upon the reflUng of the amended petition, 
was still In court and was pending there at 
all times from the date of the institution 
thereof. The amended petition was not a 
new suit, but was merely the continuation of 
tbe one originally brought. The right of 
plaintiff, therefore, to proceed against the 
owners of the property, was In no way lost 
or barred. 

The Judgment Is reversed, and the cause 
remanded. 



VAN TBUMP V. SANNEMAN. (No. 12088J 

(Kansas City Court of Appeals. Missouri. 

June 12, 1916.) 

1. Costs 4s»70— Feb Biix — Confession or 
Ebbob. 

In an action for an accounting between part- 
ners, where a referee was appoint^ who filed 
a report showing defeudaot's udebtedness to the 
plaintiff, the OTerruIiug of exceptions thereto 
without tbe rendition of any judgment In the 
circuit court left no ground upon which a fee 
bill could be issued against plaintiff for costs 
made by the defendant, and aefendant's silence 
should be construed as a confession of error 
therein. 

[Ed. Note.— EV>r other cases, see Cosfas, Cent 
Dig. {i 290-296 ; Dec. Dig. <S=o70.] 

2. Costs «=»70— Rbfebxk's Fees— Statutes— 

Under Rev. St 1909, ; 2016, providing that. 
In the absence of any special agreement referees 
shall receive such compensation for thdr serv- 
ices as the court in which the case is pending 
may allow, tbe compensation of referees may be 
taxed as costs; but, as tbe statutes do not in- 
clude referees or referees' stenographers among 
the court otBcers entitled to a fee bill, the fees 
of tbe referee or tbe referee's stenographer or of 
defendant's witnesses were not properly includ- 
ed in a fee bill issued after reference and re- 
port, but before judgment had been entered. 

[Ed. Note.— For other cases, see Costs, Cent. 
Dig. $§ 290-298; Dec. Dig. <S=70.] 

3. Costs ©=92— Stattjtes— Oonstbdction. 

Tbe allowance and collection of the costs of 
litigation are governed entirely by statute, and 
such statutes must be strictly construed. 

lEd. Note. — For other cases, see Costs, Cent 
Dig. §J 4. 26; Dec. Dig. <8=»2.] 

4. Costs e=3279— Fee Bnci/— ExEctrnow. 

Without a judgment for one or the other of 
tbe parties to a cause, an incidental judgment 
for costs cannot be rendered, and, as an execu- 
tion for costs must run in the name of the party 
in whose favor the judgment was rendered, a 
fee bill cannot be treated as an execution for 
costs. 

[Ed. Note.— For other cases, see Costs, Cent 
Dig. §S 1061-1071 ; Dec. Dig. <8=»279.] 
6. Costs «=>279— Remedy— Fee Bili.. 

A fee bill is the proper remedy of officers 
and witnesses to recover fees for services ren- 
dered by them. 

[Ed. Note.— For other cases, see Costs, Cent. 
Dig. f{ 1061-1071; Dec Dig. <S=>279.I 

Appeal from Circuit Court, Jackson Coun- 
ty; O. A. Lucas, Judge. 



Action 1^ B. W.'Van Tmmp against R. H. 
Sanneman. From a judgment ovemning 
plaintiff's motion to strike out certain Items 
from a fee bill iasned against him, he ap- 
peals. Reversed, and cause remanded. 

Frank O. Warren, of Kansas City, for ap- 
pellant W. F. ^umbrunn, of Kansas Clt7, 
for respondeat 

JOHNSON, J. This to an appeal from a 
judgment overruling plaintiff's motion to 
strike out certain items from a fee bill Is- 
sued against plaintiff by the clerii of tbe 
circuit court and placed In the hands of tbe 
sheriff for collection. 

Tbe action brought by plaintiff was for an 
accounting between partners. A referee was 
appointed, and after bearing the evidence 
be made and filed a report finding the issues 
In favor of plaintiff and that defendant was 
indebted to plaintiff upon an accounting in 
the sum of $422.43. Defendant's exceptions 
to this report were overruled, but no judg- 
ment against defendant was entered In tbe 
circuit court Tbe referee appended an Item- 
ized bill of costs to his report which Includ- 
ed the fee of witnesses called by defendant 
and compensation to the referee and tbe ste- 
nographer employed by him to preserve tbe 
evidence, and an order was entered In tbe 
circuit court allowing these fees and charges 
which plaintiff concedes were reasonable and 
proper Items of costs. Such was the state 
of tbe record when tbe clerk Issued tbe fee 
bill containing tbe mentioned items and de- 
livered It to tbe sheriff for collection against 
plabitiff. 

[1-3] Counsel for respondent filed no brlrf 
and did not appear and argue the case. 
From our inspection of the record and the 
light we have received from appellant's brief 
and argument we are convinced that palpa- 
ble error was committed against appellant, 
and that the silence of respondent should be 
construed as a confession of error. Since no 
Judgment has been rendered against plain- 
tiff, It is difficult to perceive any ground 
upon which a fee Mil could be Issued against 
him for costs made by defendant Clearly 
the motion should have been sustained as to 
the fees of defendant's witnesses. And It Is 
Just as dear that the fees of the referee and 
the referee's stenographer should have l>een 
stricken from ibe bill. No final Judgment 
having been rendered for plaintiff on liie 
referee's report, the cause is still pending in 
the circuit court Tbe allowance and collec- 
tion of the costs of litigation are governed 
entirely by statute, and the rule is well set- 
tled that sucb statutes must be strictly con- 
strued. They provide that: 

"Referees, in the absence of any special agree- 
ment, shall receive such compensation for their 
services aa tbe court in which the case is pend- 
ing may allow, not exceeding ten dollars per 
day." Section 2016, R. S. 1W9. 



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336 



And tbls statute baa been conatxaea to aa> 
tborlze the compensation of the referee to he 
taxed as costs. Schawacker v. McLaughlin, 
139 Mo. 23S, 40 S. W. 935; Turner v. Butler, 
66 Mo. Apfk. 380; Conroy r. Frost, 38 Mo. 
App. 351. 

[4] Bat, since the statutes do not Indnde 
referees or referees' stenographers among 
the court offlCKs who are entitled to a fee 
bin, none may he issned in their favor pend- 
ing the final disposition of the cause in the 
drcnlt court. Manewal v. Proctor, 112 Mo. 
App. loc dt 319, 8T S. W. 30; Oonroy v. 
Frost, supra; Dempsey y. Scha-wacber, 62 
Ma App. 166; Trail v. SomerTine, 22 Mo. 
App. loc. dt 811; Watklns v. McDonald, 70 
Mo. App. loc. dt 857. Nor may we treat the 
fee bill as an execution for costs. Without 
a judgment for one or the other parties to 
the cause an Incidental judgment for costs 
could not be rendered, and an execution for 
costs must run in the name of the party In 
whose favor the judgment was rendered. 
Hoover y. Railway, 115 Mo. 77, 21 S. W. 
1076; Dempeey v. Schawacker, gnpra, 62 Mo. 
App. loc dt 168. 

[i] A fee bin is the proper remedy of of- 
ficers and witnesses to recover fees for serv- 
ices rendered by them (Hoover v. Railway, 
inpra), and, as we have shown, is not a 
remedy available to a referee during the pen- 
dency of the suit 

The judgment is reversed, aad the cawse 
remanded. All concur. 



8TIMMBRS y. OHICAGO. R. I. * P. R7. CO. 

(No. 12022.) 

(Kansas CSty Court of Appeals. Missouri. 

June 12, 1916.) 

1 ApPEAI, and EbbOB «=3997(2)— DEMtfBBKB 
TO EVIDKNCE. 

In an action for personal injuries, where a 
demnrrer to the evidence was overruled, question 
ia not whether the evidence as a whole will sus- 
tain two or more probable causes of the injury 
for one «r more of which the defendant would not 
be liable, but did plaintiff adduce substantial 
eridenee, which, if accepted by the triers of fact, 
will point to the pleaded cause as the proximate 
and sole cause of Injury. 

(Ba. Note. — Fdr other cases, see Appeal and 
Error, Cent. Dig. H 4028, 4024; Dec Dig. @=9 
997(2).] 

2. DAtCASBS <&s>208(2)— Questions fob 3vsrt 

— SursiciENCT OF Evidence. 
In an action for personal injuries alleKins to 
bare been caused by a fall across the edge of a 
two-inch plank, occasioned by stepping on a de- 
fective rnnniag board, along the fence of defend- 
ant railroads loading chute, evidence consisting 
of the opinion of plaintiff's expert witness that 
the plaintiff's condition conld not have resulted 
from overllfting, although oontradicted by the 
opinion of defendant's expert, held sufBcient to 
take the issue to the jury. 

[Ed, Note.— For other cases, see Damages. 
<-ent Dig. H 533, 684; Dec. Dig. «8=»208(2).] 

8. Appkai. and Bbbob <S=»1068(4)— Habulesb 
Ebbob— Iwtrr mi cT i oNS. 
In an aetloa for personal injuries alleged to 
have bean sustaiaad in defendant railroad's load- 



ing chute, where the petition aUeged that plainr 
tiff was compelled to expend $700 for medical at- 
tention, nursing, and hospital accommodations, 
error in plaintiffs instruction on the measure of 
damages autitocisdng an assessment for the mon- 
ey spent in this way, if any, -without restricting 
the assessment to the pleaded sum. was harmless, 
where the only evidence could not nave induced a 
higher assessment than the petition authorized. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. $4228; Dec Dig. <@=>1068(4) ; 
Trial, Cent Dig. U 475, 480, 663, 558.] 

Appeal from Circuit Court, Jackson Coun- 
ty; I. N. Watson, Spedal Judge. 
"Not to be offldally pnbliabed." 
Action by Samuel J. Summers against the 
Chicago, Rock Island & Pacific Railway 
Company. Judgment for plaintiff, and de- 
fendant appeals. Affirmed. 

Paul E. Walker, of Topeka, Kan., and Se- 
bree, Conrad ft Wendorff, of Kansas City, 
for appellant Robinson ft Goodrich, of Kan- 
sas City, for respondent 

JOHNSON, J. . This Is an action for per- 
sonal injuries plaintiff alleges were caused 
by negligence of defendant A trial of the 
Issues raised by the pleadings resulted in a 
verdict and judgment for plaintiff in the sum 
of $2,000, and defendant appealed. At the 
time of his injury which occurred October 
30, 1913, plaintiff, who lived at Scandia, 
Kan., and was in the business of buying 
and shipping horses, was engaged in loading 
horses Into a car at defendant's yards in 
Scandia for shipment over defendant's rail- 
road. In driving the horses through a load- 
ing chute he climbed over one of its fences 
and stepped down on to a plank walk or 
running board along the fence on the out- 
side. The plank on which he stepped was 
decayed and broke under his weight, which 
was 230 pounds, and he fell astride the sup- 
porting brace, a 2x6 plank set edgewise, 
striking the edge of the brace in a position 
to hurt his rectum and testicles. He suf- 
fered intense pain in those parts for about 
two hours, and lay on the ground 15 min- 
trtes while a negro assistant named Willis 
finished loading the horses into the car, and 
then he walked to Ids home unassisted. 
That afternoon he rode out into the country 
In an automobile to transact some business, 
and on the following day he made another 
such trip; but on the third day after the In- 
jury he was able only, as he states, 'i:o 
hobble around the best he could and try to 
get rid of the pain." Eight days after the 
Injury he called in Doctor Uaggman of Scan- 
dia who treated iilm three days, and then 
decided that he should be removed to a hos- 
pital at Concordia, the county seat, for a 
surgical operation. On his arrival at the 
hospital. Dr. Pierce of Concordia, assisted 
by Dr. Haggman, i)erformed an operation on 
him for an abscess which bad formed in tlie 
prostate gland. 

Plaintiff bad developed a high tempera- 



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tnreat Chat tfnie and was ihonght by the 
doctors to be in a critical condition. Dr. 
Pierce testified that he opened up one lobe 
of the gland and there was pus in it. He 
said — 

"the tissnes were all swollen, congested, but 
afterwards abscesses formed, one or two formed 
in the region of the urethra; that is, when he 
had the second rise of fever, when he seemed in 
the critical condition several days after open- 
ing him up; I think he had a temperature of 106 
at that time ; used serum on him and one thing 
and another; but at the time of the operation 
the only abscesses I discovered at that time, as 
I remember It, was the abscess in the prostate 
gland; the parts seemed to be all swollen and 
congested. Q. That would be probably the natu- 
ral result from the bruise or the abscess in the 
gland? A. That would be a &ctor. Q. Prob- 
ably the abscess in the gland had caused that 
condition around the gland? A. It would have 
some influence on it. For instance, in an older 
man you very frequently open the prostate gland 
on some men, you will nud pus and no condition 
of swelling around the urethral rectal tissues. 
That is due to a degenerated condition — age." 

He found no abrasion or discoloration of 
the skin, but the absence of a noticeable dis- 
coloration might have been due to the nat- 
ural color of the skin, which was very dark. 
Three weeks before his fall, plaintiff had 
strained himself lifting heavy bags of alfal- 
fa seed; and, when the witness interrogated 
him to ascertain, if possible, the cause of 
the condition of the prostate gland, plain- 
tiff first told of this incident The witness 
did not think it would afford a reasonable 
cause for such an Injury to the gland, but 
when plaintiff told him about his fall across 
the scantling, be accepted that as the prob- 
able cause of his injury, and his expert testi- 
mony is to the effect that such a cause could 
hare produced that condition. 

Doctor Haggman testified: 

"They called me over the telephone to come to 
see Summers ; he was sick. I went down and 
found him lying down • * * and I examined 
bim and found him to have some fever, pulse 
rate a little increased : I examined his rectum 
and found a great deal of tenderness in the re- 
gion of the rectum, and prostate gland enlarged 
and tender, a swelling and tenderness to the 
right side and towards the back of the rectum. 
Q. Was the swollen condition between the rec- 
tum and scrotum? A. No, sir. Q. What oc- 
curred after that, Doctor? A. I saw him on the 
8th, 9th, 10th, and lltb of November, and his 
fever seemed to get higher, the pain increased, 
the swelling increased, and I advised bim to ei- 
ther call a surgeon or go to a surgeon somewhere, 
and he decided to come to Concordia to Doctor 
Pierce and we took him down then in a car; 
came down. Dr. Pierce examined bim, and he was 
operated on that evening. ♦ ♦ • Q. What did 
you operate upon Summers for. Doctor, did yon 
operate on him yourself? A. I gave the anaes- 
thetic. Q. Why was there an operation upon 
Summers? A. Because of swelling and the pain 
there and the enlargement and tenderness of 
the prostate gland, to relieve the swelling and 
the pain, of course. Q. Where is the prostate 
gland located, with reference to the scrotum and 
rectum? A. At the neck of the bladder, that is 
between the scrotum and rectum, only deeper, 
Mgber;^ depends on the position the body is in. 
Q. I will ask if you have made any examinatioB 
d Summers since that time? A. Yes, I have. 
Q. State what the examination consisted of, 
when .you made the examination, and what you 



found; Doctor. * *. * ' A. I esaniiBed him 

some time last summer (I can't place the date 
right now), and then a few days ago I saw him 
and I examined him then and found the coccyx 
knuckling in or bent into the rectnm, and on 
touching that he coipplained .of pain, or tender* 
ness, nnd complained of pain every time be goes 
I to stools. One testicle, or rather epididymis, 
and that is connected on the testicle, that is en- 
larged and tender. Q. Did you get a clinical his- 
tory of the case? A. From the hospital? Q. 
On the examination of Summers, of coarse, you 
did, but what I want to get at is this: In treat- 
ing any one you take naturally a history of the 
ease, do you not? A. Written. • • • Q. 
Wh^n was the last time. Doctor, you made an 
examination of Summers, if you recall? A. It 
was very recently. Q. Approximate within a 
week or two. A. It must have been within a 
week. Q. What did yon find. Doctor? A. The 
same condition after examining him last sum- 
mer. Q. What was it? A. Knuckling in or 
bending of the coccyx, which he complained of 
being tender, I moved it and felt It bond and 
give, and the enlaigement of the epididymis, 
tenderness; it was enlarged," 

Plaintiff told the witness about lifting al- 
falfa and riding horseback, but said nothing 
at first about hla fall. As to causes tbat 
may produce an abscess in the prostate 
gland, the witness testified: 

"Q. What are some of the canses that affect 
the prostute gland in the condition in which yoo 
found this prostate gland? A. A bruise is the 
usual thing, a bruising of the tissues there with 
infection. Q. What kind of infection? A. Any 
kind." 

Expert witnesses introduced by defendant 
expressed the positive conviction that an ab- 
scess in the prostate gland could not be 
caused by a fall astride a two-inch beam, 
owing to the peculiarities of the structure 
and position of the gland In the body. 

[1 , 2] There is evidence introduced by de- 
fendant which tends to, show there was no 
rotten board in the runway and that plain- 
tiff did not falL Tills evidence finds sup- 
port in the circumstance that plaintiff, in 
giving the history of the ease to his. doctors, 
did not, at first, mention a fall across the 
beam; but we have concluded from a care- 
ful examination of all the evidence tliat we 
would not be Justified in boldlng Otat tbe 
evidence of plaintiff was without sufficient 
probative force to take to the Jury the is- 
sue of whether or not be fell and was hurt 
in the manner he described. The negro who 
was helping to load the horses testified that 
the board broke under plaintiff's weight, and 
that plaintiff fell heavily astride the beam 
and appeared to suffer Intense pain, and an- 
other witness testified to seeing him falL 
The Jury were entitled to Infer that plaintiff 
did fall, since such Inference has the sup- 
port of substantial evidence. 

But counsel for defendants earnestly, and 
with much plausibility. Insist that the evi- 
dence fails to show a causal connection l)e- 
tween the fall across the beam and the con- 
dition which subsequently developed In the 
prostate gland and therefore that the ver- 
dict awarding damages for that oondltion 
must be regarded as the product of gness or^ 
conjecture. If, as counsel contend, the evl- 



bgle 



Ifo.) 



JfACKSON y. OITT OF SEDAMA 



127 



denoe most favorable to plaintiff dlsdoses 
tvo or more probable causes of the Injury 
for only one of which defendant would be li- 
able, the verdict and judgment should be set 
aside as the offspring of metre speculation 
and coDjectnre. Rogers v. Packing Co., 167 
Mo. App. 49, 150 S. W. 656, and 180 Mo. 
App. 227, 166 S. W. 880; Ooransson v. Manu- 
facturing Co., 186 Mo. 806, 85 S. W. 338; 
Fowler v. Elevator Co., 143 Mo. App. 422; 
127 a W. 616; Byerly v. Light Co., 130 Mo. 
Appw 593, 109 S. W. 1065; Powell v. Railroad, 
255 Ma 420, 164 8. W. 628; Pbrcell v. Shoe 
Co.. 187 Mo. 276, 86 S. W. 121. 

There is no proof that plaintiff sustained 
any Injury from horseback riding; but the 
evidence aa a whole wUl support an infer- 
ence that the strain resulting from overllft- 
ing did produce the abscess in the prostate 
gland, or It wUl support a contrary inference 
that the abscess had no traumatic origin, 
bnt was caused solely by infection or dis- 
ease. Ibe question we are called upon to de- 
ride is, not whether the evidence as a whole 
will sustain two or more probable causes of 
the Injury for one or more of which defend- 
ant would not be liable, bnt did plaintiff ad- 
duce substantial evidence which, if accepted 
by the triers of fact, would point to the 
pleaded cause as the proximate and sole 
cause ot the injury? Uls evidence describes 
him as a strong, healthy man 38 years old 
and, therefore, as one who would not be af- 
flicted by the degenerative processes which 
sometimes attack the prostate gland In old 
men and, aided by Infection, cause the forma- 
tion of abscesses; and it excludes the the- 
ory that the abscess might have been the re- 
sult of some venereal infection. The opinion 
of Doctor Pierce that it could not have re- 
sulted from overllfting but could have been 
caused by a heavy fall across the edge of a 
two-inch plank appears reasonable, though 
contradicted by the opinion of defendant's 
experts. This evidence was sufficient to take 
the issue in question to the Jury as one of 
fiict bnt stlU stronger support la found in 
the evidence of injury to the coccyx, which 
manifestly would not have been caused by 
overlifting or Infection. The demurrer to 
the evidence was properly overruled. 

[9] The petition alleged that "plaintiff 
was compelled to and has expended large 
sums of money in procuring medical atten- 
tion, medicines, nursing, and hospital accom- 
modations in the sum of, at least ^00." 
Plaintiff's instruction on the measure of dam- 
ages authorized an assessment for "the mon- 
ey, if any, expended by plaintiff In procuring 
medical attention, nursing and hospital ac- 
commodations," without restricting the as- 
sessment for snch damage to the pleaded 
sum of $700. This omission is assigned as 
piejndicial error. 

The uncontradicted evidence of plaintiff 
showed that his total outlay for doctors' 
UHs, nnrslng, and hospital accommodations 



did not exceed |316. We Indst assume the 
Jury were guided by the evidence and did 
not assess a greater sum for such special 
damage than the evidence warranted; and we 
would not be justified in disturbing the Judg- 
ment because of an error In the Instruction 
which, if the Jury did follow the only evi- 
dence bearing on the subject, could not have 
induced a higher assessment than the peti- 
tion authorized. Sbinn v. Railroad, 248 Mo. 
173, 164 S. W. 103. 

The point that one of the attorneys of 
plaintiff was allowed to Indulge in improper 
argument to the Jury Is found to be without 
merit. A constitutional question urged in 
the briefs was withdrawn on oral argument 
and will be treated as abandoned. 

There Is no prejudicial error in the record 
and the judgment is affirmed. All concur. 



;rAOKSON T. OITY OF SEDALIA. 
(No. 11997.) 
(Kansas City Court of Appeals. Missouri. May 
22, 1916. Rehearing Denied June 12, 1916.) 

1. Mttnioipal Corpobations <s=»759(2) — De- 
fects nr Streets— DtjTT to Repaib— "Gov- 

EBNMENTAL OAPACrTT." 

A city in accepting a street acts in its gov- 
ernmental or legislative capacity and cannot be 
held liable for any neglect of dutv until it has 
acted in its ministerial capacity by giving the 
street to the pnblic for use, and it also is a gov- 
ernmental matter for the city to say to wliat 
extent it will offer a street to pubUc for use. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. f 1606; Dec. Dig. «=» 
75012). 

For other definitions, see Words and Phrases, 
Second Series, Oovernmental Function.] 

2. Municipal Cobpobations.€=»769(1>— Iwjtr- 
BT ON Stbket— Stbeets Not n» Use. 

One injured on a portion of a street which 
a city has neitlier actually nor impliedly invited 
him to use cannot recover damages from the city. 
[£kl. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. f 1505 ; Dec. Dig. «=» 
750(1).] 

3. Munioifai. Cobpobations 4s»818(1)— De- 
fects ON Sn)IEWAI.KS— EVIDKNOE. 

Although the fact that a city has improved, 
or has sought to repair, the portion of a street 
where an injury occurs, is evidence that such 
portion has been given and opened to the public 
for use, an invitation to use it can be shown in 
other ways. 

[Ed. Note. — For other cases, see Municipal 
Corporations, Cent Dig. { 1726; Dec. Dig. «=> 
SlSfl).] 

4. Mttnicipal Oobporations «=»759(3)— De- 
fects IN STBEETB—LiABn-nr— Invitation. 

Where a strip was left on each side of a 
well-defined roadway, corresponding to the place 
where a constructed sidewalk would be placed, 
the street being level and smooth and fit for 
travel, and the space on the side in good condi- 
tion for use as a sidewalk, although there was 
no actually constructed sidewalk, the invitation 
being that every part of a street thrown open for 
public use that is suitable for travel may be 
used, and a crossing led directly to the strip, 
there being no other place so suitable for travel 
by pedestrians, there was a sufficient invitation 
to the public to use the strip as a sidewalk to 
render the city liable for defects, since 



4=>Fi>r other caiM tee uune topte and KSY-NUM BSa in all KeyMumbsrtd DtgmU and IndtzM' 



^i^yGooQle 



T28 



187 aOUTHWBSTORN KE1PORTB9 



(Mo, 



th« improTement of a street that fixes liability, 
bat the invitation of tbe public to use that por- 
tion on which the traveler is injured. 

{£M. Note.— For ' other cases, see Municipal 
Corporations, Cent Dig. fj 1597, 1688; Deft 
Dig. «5>7^3).] 

5. MXTNlCrPAL CORPOKATIOWB «s»821(24)— Db- 
FECT8 IN Sidewalk— OoNTRiBXJTOBT Nbou- 

GBNCE— QUESTION FOB JUBT. 

In an action for personal injuries received by 
falling over stakes which plaintiff knew were set 
in a sidewalk, but because of the darkness she 
veered a few feet to one side of the center of tie 
walk, whether plaintiff was exercising ordinary 
care held for the jury. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. g 1755; Dec. Dig. <S=> 
821(24).] 
e. Tbiai, «=3l91(7)— Ikstbfctionb— Asaumwo 

Facts. 
In an action for personal injuries on a side- 
walk, an instruction, which submitted the ques- 
tion whether the strip on which the accident oc- 
curred had been left as a sidewalk for the use of 
the public and had been used as such for a 
long time prior to the accident was not improp- 
er, as assuming that the city had thrown the 
portion of the street in controversy open to 
public use. 

[Ed. Note.— For other cases, see Trial, Cent. 
Dig. S 430; Dec. Dig. «=9l91(7).] 

7. Mdnicipal Cobpobations «=9821(2)— De- 
fects IN Sidewalk— Tbial— Issues. 

In an action for personal injuries received 
from a fall over stakes set in a sidewalk, where 
the evidence on both sides agrees upon facts 
which show that the public had been invited to 
use the strip as a sidewalk, the question of in- 
vitation to the public is no longer contested. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. { 1746; Dec. Dig. «=» 
821(2).] 

8. Municipal Oobpohations ®=>822(1)— Db- 
FEOTS IN Sidewalk- Tbial— Instboctions. 

In an action for personal injuries from fall- 
ing over stakes in a sidewalk, refusal of in- 
structions making the question of the city's in- 
vitation to use the strip as a sidewalk depend 
entirely on whether it had manifested that invi- 
tation by placing or maintaining a prepared or 
constructed walk was proper. 

[Kd. Note. — For other cases, see Municipal 
Corporations, Cent Dig. S 1758 ; Dec. Dig. <e=s> 
822(1).] 

9. Tbial <g=>252(l)— Abstract Instbuction. 

The refusal of an instruction not baaed on 
evidentiary facts is not error. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. Si 596, 612; Dec. Dig. <8=>252(1).] 

10. Tbial €=»2o2(l)— Instructions. 

The refusal of instructions in conflict with 
conceded facts is not error. 

[Ed. Note. — For other cases, see Trial, Cent 
Dig. §i 586, 612; Deft Dig. <S=>252(1).] 

11. Tbial *=9260(1)— Instbuctions. 

The refusal of instructions, the proper ele- 
ments of which are contained in given instruc- 
tions, is not error. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. § 651 ; Deft Dig. <8=>200(1).] 

Appeal from Circuit Court, Pettis County; 
H. B. Shaln, Judge. 

"To be officially published." 

Action by Laura Jackson against the City 
of Sedalia. Judgment for plalntliT, and de- 
fendant appeals. Affirmed. 



Hall, Robertson & O'Bannon, at Sedalia, 
for appellant W. D. Steele and A. L. Short- 
ridge* both of Sedalia, for respondent 

TRIMBLB, J. Tbls is an action for dam- 
ages arising from a fall by plaintiff while 
walking on a public street in. the city of 
Sedalia. Sbe recovered Judgment for ^1,000, 
and defendant has appealed. 

The facts are as follows : Engineer street, 
in said city, runs north and south and is 
intersected at right angles by Blghteentb 
street running east and west. Nineteentli 
^reet is parallel to and the next street 
south of Eighteenth. Plalntia lived on Nine- 
teenth street one bouse east of Engineer 
street. For maity years Engineer has been 
one of the traveled streets of the dty. About 
four years prior to the plaintiff's fall the city 
bad graded this street from curb line to curb 
line. The street was level and smooth from 
property Une to property line, and the grad- 
ing consisted merely of taking out tbe dirt 
to a depth of eight or ten inches at the 
curb line on each side and making a well- 
defined roadway between the two curb lines 
and leaving a space on each side of tbe 
roadway about e^ht feet wide. This space 
was between the propert^r line and what is 
ordinarily tbe curb, and in other streets 
l8 the space Cbat is occupied by the side- 
walk and parking adjacent thereto. Along 
the sputh side of Eighteenth street from tbe 
west Bide of Engineer is a concrete side- 
walk which extends west to the principal 
part of tbe city and the nearest car Une. 
From the east end of this sidewalk at the 
southwest corner of Eighteenth and Engineer 
streets, a crossing extends west acroas En- 
gineer street to the southeast corner of 
Eighteenth and Engineer. 

Some three years prior to plaintiff's fall, 
Mr. Hocker, who then was and ever siuoo 
has been an alderman of the city, drove 
a number of stakes in a row, commencing 
at a point about 20 feet south of the cross- 
ing at the southeast corner of Eighteenth 
and Engineer streets and running south for 
several feet. There was. a woveu wire fence 
on the property line on tbe east side of 
Engineer street, and this row of stakes was 
7 feet west of the fence. They were perhaps 
a few inches, perhaps a foot, east of tbe edge 
of the graded part, and therefore between 
the property line and the curb line and with- 
in the space left on the east side of the street 
for tbe sidewalk. From the southeast 
corner of Eighteenth and Engineer streets 
there is no sidewalk ruiming east along 
Eighteenth street, nor has any sidewalk been 
constructed along the east side of Engineer 
street But for many years the public, and 
especially the people living south and east 
of the last above-mentioned corner, have 
traveled upon this S-foot space on the east 
side of Engineer street as a sidewalk in go- 
ing from Eighteenth to Nineteenth, and vice 



CsaFor otliar caaw H* Bam* loplc and KJEY-NUMBSB In all Key-Numbered Dtgeeta aad ladexea' 



ogle 



Ua) 



JACKSOK y. OIXT OF SiBDALIA 



U29 



versa. For seTeral years the city bas main- 
tained a street slgu with the number on it on 
the east side of Engineer street at Eight- 
eenth. Thia 8-{oot space, thus need as a 
sidewalk, was level and smooth and required 
Dotbing to be done to it to put it in con- 
dition for pedestrians to walk upon it as 
a sidewalk, though, as ha« been stated, no 
wait was ever built there ; the people merely 
osiDg the smooth ground as a sidewalk. 

On the night of November 15, 1914, wliich 
was very dark, plaintiff was returning home 
tma a neighbor's. She came east along 
the south side of Eighteenth street and, 
reaching Engineer street, continued east 
across that street on the crossing till she 
came to the southeast corner of Eighteenth 
and Engineer. Here she turned south on the 
space 'used as a sidewalk and attempted to 
proceed in the middle of the walk to Nine- 
teenth street. In doing so, she unwittingly 
veered slightly from a due south course and 
gtmnbled over one of the stakes above men- 
tioDed and fell upon some of the others, they 
striking her in the groin and albdomen and 
injorlng ber severely. These stakes were 
about six Inches high and perhaps two Inches 
square. 

It Is the contention of the defendant that 
its demurrer to the evidence should have been 
Bostalced. This contention proceeds upon 
the idea that inasmuch as there was no con- 
structed sidewalk, made of wood, stone, brick, 
or other mateii^ils built on this ei^t-foot 
space, the city couh^ not be deemed to have 
undertaken the duty of keeping it in reason- 
ably safe repair, and therefore could not be 
held liable. In support of this contention, 
defendant dtes Ely v. St. Louis, 181 Mo. 723, 
81 8. "W. 168; Euppenthal v. St, Louis, 190 
Ho. 213, 88 S. W. 612; Curran v. St Joseph, 
143 Mo. App. 618, 128 S. W. .203, 

[1, 2] The doctrine of these cases is well 
established, and no one would attempt to 
controvert or qnestion them. It is quite true 
that a city, in merely accepting a street, or 
by dedarlng that it is such, or in deciding to 
what extent the street shall be given to the 
pnbllc for use, acts In its governmental or 
legialktive capacity, and cannot be held liable 
for any neglect of duty until after the city 
has acted In its ministerial cax>acity by giv- 
ing the street to the public for use and in- 
viting the public to travel . the same ; and 
since it is a governmental matter for the city 
to say to what extent it will offer a street 
to the pnbllc for use. If an individual at- 
tempts to use a portion which the city has 
neither actually nor impliedly invited him 
to nse, and be Is injured thereon, he cannot 
look to the dty for damages. 

(}] Bat it must always be remembered 
that it Is not the improyement of the street 
that fixes liability for neglect of duty. .It is 
the invitation on the part of tlie dty to use 
that portion of the street . on which the 
traveler is injured that renders the city liar 
ble for neglecting to ke^p snch portion in a 
187 S.W.-8 



reasonably safe condition for travsL Qf 
course, the fact that the city has improved, 
or has sought to repair, the portion Of the 
street where the injury occurred, is evi- 
dence that such portion has been given and 
opened to the public for use; but, if that 
cai^ be shown by other facts, it will be suffi- 
cient. 

[4] In this case the street was level and 
smooth, fit for travel from property line to 
property line without anything being done 
to it. When it is shown that such a street 
has been opened to the public for use, the 
Invitation is that every part thereof suitable 
for travel may be used. When the roadway 
between the curb lines was graded and 
proi)erIy shaped up leaving an eight-foot 
space on the east side of the street for a 
sidewali, and in good condition for nse as 
such without anything farther to be done to 
it in order to m«ke it suitable for travel, 
there is nothing to Indicate to the traveling 
public that the invitation to use the street Is 
limited to the roadway portion. Nor, indeed, 
was the invitation limited thereto in this 
case, for a crossing led from the southeast 
comer of Eighteenth and Engineer streets 
wes^ across the latter to the north end of 
the sidewalk space in question. And as no 
actually constructed sidewalk led on from 
the termination of this crossing, it wa^ in It- 
self an invitation to the .public to use the 
strip running south . alopg the east side of 
Engineer street as a sidewalk. Tlie city 
engineer admitted on cross-examination that 
there was a walk there, and tbaii the strip 
was, "left there for people to walk on," but 
said there was no granitoid or other paved 
walk there. For several years the pubUc had 
accepted the invitation, thus extended, and 
had used the strip as a sidewalk, and, after 
these conditions had become established, a 
row of stakes was driven in the space thus 
left for and used as a sidewalk, and these 
stakes rendered it dangerous and unsafe. A 
"sidewalk," as its name indicates, is noth- 
ing more than a sidewalk; that is, a path 
or way for the use of foot passengers at the 
side of a street. Usually it is paved, and 
this is so often the case that in using the 
term "sidewalk" we think of the construc- 
tion as constituting the sidewalk. But, as 
stated before, it is not the constructing of a 
paved pathway that renders the city liable 
for a failure to keep It reasonably safe; 
it is the invitation on the part of the city 
to the public to use the way for a walk, and 
that Invitation may be extended, as in this 
case, by other ways than by having a paved 
walk constructed thereon. This is not a case 
where a portion of a street is left in a state 
of nature so unfitted for use as a walk that 
the dty cannot be said to have invited the 
public to use itr The conceded facts show 
that the strip was left for .people to walk 
on ; that it was 0t and suitable for that pur- 
pose; that 
nowhere else, 



was nt ana suicaoie lor mat; pur- 
a crossing led dlrectfy to.lt and C^ f^f^ri\(> 
se, since therg y^aa op built walicy VjVJUV IV^ 



130 



18T SODTHWESTERi^ REPOE'raB 



(Mo. 



from there on In any other direction. And 
the Injnry was caused, not by some natural 
and Inherent defect In the strip, bat from 
something placed there after the Invitation 
to use the walk has been extended and ac- 
cepted. 

"A city like the humble ylllage or country 
town may leave its streets as dirt roads, and 
yet be liable for defects negligently allowed to 
exist in them." Benton t. St. Iiouis, 217 Mo. 
687, loc. cit. 701, 118 S. W. 418, 422 (129 Am. 
St Rep. 561). 

As said in Brennan r. City of St Louis, 92 
Mo. 482, loc. cit 487, 2 S. W. 481, 482: 

"While it must be conceded that much discre- 
tion lies with the city government, as to how and 
of what material the streets and sidewalks shall 
be made, yet when a street ia thrown open 
to public use, as this one was, it is the duty of 
the city to keep the same in a condition reason- 
ably safe for persons traveling thereon with or- 
dinary care and prudence." 

To the extent that the dty sanctions the 
use of a street by the public as a thorough- 
fare can the dty be Justly held liable for 
lack of ordinary care to maintain the thor- 
oughfare in a reasonably safe condition for 
such use. Baldwin v. (31^ of Springfield, 141 
Mo. 205, loc. cit 212, 42 S. W. 717. And In 
the case at bar, the conceded facts show that 
the city's invitation to use the street was not 
limited merely to the roadway, but extended 
also to the space left as a sidewalk for the 
Iieople to travel on. It not only formed a 
suitable sidewalk for pedestrians, but there 
was no other place so suitable for them 
to travel as here, and a crossing led di- 
rectly to it so that it might be used. The 
proof that the dty has invited the public to 
use a thoroughfare is not confined to the 
Ordering of a constructed walk thereon. It 
may be shown in other ways. Meiners v. 
City of St. Louis, 130 Mo. 274, loc. cit 284, 
S2 S. W. 637. 

[6] The charge that plaintiff can be held 
guilty of contributory negligence as a mat- 
ter <rf law is untenable. She knew the stakes 
were in the ground, but walked east on the 
crossing to the comer and then turned south 
on the sidewalk space, as she says "going 
along Just as cautious and careful as I 
could." In going to the comer she went to 
where she would get upon the walk, and, if 
she had kept on due south walking on the 
middle or east portion of the seven-foot strip, 
she would have missed the stakes; but, In 
the darkness, she veered a few feet to one 
side and fell over the pegs. The question 
whether she was exercising ordinary care 
or not was one for the Jury. While her 
knowledge of the stakes was Important as 
bearing on the question of her negligence, 
yet it does not result in declaring absolutely 
as a necessary conclusion of law that she 
was negligent. Graney v. St Louis, 141 Mo. 
180, loc. dt 185, 42 S. W. 941; Mans v. aty 
of Springfield, 101 Mo. 613, lo& dt 618, 14 S. 
W. 630, 20 Am. St Rep. 634; Beauvais v. 
aty of St Louis, 169 Mo. 500, 69 S. W. 1043. 

The fact that the pegs were located near 



the west edge of the strip of ground left as 
a sidewalk can have no conclusive bearing 
upon the matter. Defendant seems to argrne 
that, as the stakes were west of and outside 
the line of ordinary travel, the dty is not 
liable. The evidence is the entire strip had 
been left for people to walk upon ; there was 
no designation of any portion thereof for 
sidewalk exduslvely and the rest for park- 
ing between the walk and curb, unless it be 
by the marks made thereon in the line of 
ordinary travel. Defendant contends that 
plaintiff must have known she was near tlie 
outside portion of the strip, from the dif- 
ference in the grass and herbage under tier 
feet; but she says she could not tell any dif- 
ference by that Besides, Mr. Hocker, a 
witness for defendant, says he kept the 
grass mowed with a lawn mower. ' The 
photographs offered in evidence do not show 
such a difference conclusively, because they 
were taken in May when the herbage was 
growing, and the accident happened in No- 
vember when the herbage, if any, was dry 
and dead. 

Even if the stakes were too far west to be 
in the space where the walk could be said 
to be, or where a constrocted sidewalk would 
have been, still this does not convict plain- 
tiff of contributory negligence as a matter 
of law or exculpate the dty from liability. 
There was nothing' to differentiate the park- 
ing from the walk proper in this case, and, 
even in cases whe^e there was el differentia- 
tion, the city has been' held liable for an ob- 
strudlon on' the parking. Pockler v. Kansas 
City, 94 Mo. App. 464, 68 S. W. 363. See, 
also, Bassett v. St Joseph, 63 Mo. 290, 
14 Am. Rep. 446; Falrgrleve v. City of Mo- 
berly, 39 Mo. App. 3T; Coffey v. Carthage, 
186 Mo. 573, 85 S. W. 532; Kossman v. St 
Louis, 163 Mo. 293, 299, 64 S. W. 513 ; Wig- 
gin V. St Louis, 135 Mo. 569, 566, 37 S. W. 
528; Hutchinson v. Mulllns, 189 Mo. App. 
438, loc. dt 452, 176 S. W. 1083. 

[a, 7] Plaintiff's instraction No. 1 does not 
assume that the dty had thrown the por- 
tion of the street in controversy open to 
public use. On the contrary, it submits the 
question whether the strip in question "had 
been left as a sidewalk" for the use of the 
public and had been used as such for a 
long space of time prior to plaintiff's fall. 
But in this case the evidence on both sides 
agrees upon the farts which show that the 
public had been invited to use the strip as a 
sidewalk. When these facts appear undis- 
puted and from the evidence on both sides, 
the question of invitation to the public is no 
longer a contested issue in the case. The 
case is wholly unlike Ruppenthal v. St Louis, 
190 Mo. 213, 88 S. W. 612. There the acci- 
dent occurred on a portion of the street 
which the city had never thrown "open to 
public travel or invited the public to use." 
190 Mo. 220, 88 S. W. 614. The unim- 
proved portion where thfe accident happened 
was "rough, full of holes, grown up wltlr^ 



gle 



Ua) 



BOWVEa T. QUINOT, O. A K. C. Ik CO. 



131 



weeds, and In no sense an ImiiroTed street 
or sidewalk." It was mnch lower than the 
iiniiroTed roadway of the street; and on 
page 228 of 190 Mo., on page 817 of 88 S. W., 
the oonrt aay the case is wholly unlike those 
esses "where the tall width of the street had 
been thrown open to public use." In the 
case at har, the entire width of the street 
was fit for public use when In a state of na- 
ture. It needed no arttflcial preparation to 
make it suitable for trav^ and had it not 
been for the stakes, driven to keep the city's 
gntter and drain frcKn caving or washing, no 
injoiy would have befallen plaintiff. And 
the conceded facta show that the puMlc was 
invited to use the space <m the side as a 
sidewalk. 

[t] Defoidant's instructions on this point, 
tlie refusal of which is complained of, are 
so drawn as to make the Question of the 
city's invitation to use the strip as a side- 
walk depend entirely on whether or not it 
bad manifested that invitation by placing or 
maintaining a prepared or constructed walk 
thereon, and In effect telling the Jury the In- 
Titati<Mi could be extended in no other way. 

[S-11] The defendant asked seventeen in- 
structions, of which the court refused seven. 
We think they were properly refused. Some 
of them were Incorrect and were refused be- 
cause of their own vice. StlU others were 
without evidentiary facts upon which to base 
them, or were in conflict with the conceded 
bets, or else were more properly covered by 
other Instructions given In the case. This 
Is especially true Of defendant's refused In- 
stmctlcm No. 9, as the proper elements there- 
of were contained In Instructions 11, 12, and 
13. 

As the case was tried without prejudicial 
error, the judgment Is affirmed. All concur. 



BOWLES T. QUINOY, O. & K. a R. CO. 

(No. 12020.) 

(Kansas C^ty Court of Appeals. Missouri. 
June 12, 191(1.) 

L CoiaCEBCC «=935— "IHTKBST^IX Coiogebcb" 

— Transpobtation of Stock. 
Where a shipment of hogs was coniigned 
bcm one point in Missouri to another, but the 
loate of the connecting carrier went into Kansas 
imwrint through several towns where the hogs 
were unloaded and fed, although the shipping 
contract by the initial carrier specified that it 
was to carry the shipment to Kansas City and 
tiiere deliver U to the connecting carrier, it was 
an interstate shipment. 

[Bd. Note. — ^For other cases, see Commerce, 
Ont. Dig. S{ 28, 26, 88; Dec. Dig. <Ss>35. 

For other definitions, see Words and Phrases, 
First and Second Series, Interstate Commerce.] 

2. Cabbikbs «=>131— Intebstaxbs OomcEBca— 
Cabhack AiatiroiixNT— Comtbaot of Shtp- 

XBHT— NXCESSTIT OF WamNO. 
Under the Carmack Amendment (Act June 
29. 1900, c 3591, I 7, pars. 11 and 12, 34 Stat. 
595 [U. S. Comp. 1S18, S 8682]), requiring that 
a contract for a shipment in interstate commerce 
■hooU be in writing but not stating that if the 



C=>iro> otb^ casM Me sams toplo and KBT-NUMBBa la all Ke7-Nambered Dlgeita and ladexea 



contract is not in writing It shall be void, a 
plaiutia in an action for damages to an inter- 
state shipment is not compelled to plead a writ- 
ten contract of ahlpment 

[Ed. Note.— For other cases, see Carriers, 
Cmt Dig. U 668-577. 683; Dec. Dig. «=»13l.] 

3. Cabbikbs «5>118— LiiABXLrrT fob lioss— 

IITTEBSTATIS ComiEBOD— STATirnB— ElTBCT 
an CoifMON-LAW RiOHTB. 

While federal legislation upon tlie liability 
of carriers in interstate commerce supersedes 
state regulations and policies, it did not destroy 
but was intended to continue in force any right 
which the shipper had under the common law, 
not inconsistent with the federal and the coia- 
mon-law rule, making a carrier liable for any 
loss or damage not the act of Cod or the puttUc 
enemy, was not affected thereby. 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. U 523-530; Dec. Dig. <S=»119.] 

4. Caebiebs <S=>227(2)— Iiiva Stock:— Action 
FOB Damaog— Pleadino. 

In an action against a carrier tot damages 
to an interstate shipment of hogs, if defendant 
wished to rely upon any defensive terms in the 
written contract not pleaded by the plaintiff, it 
could set up the written contract to obtain the 
benefit of its provisions. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. } 954; Dec. Dig. '<3=»227(2).] 
6. Puuoino «=>24S(10)— Gabbiaob of Hoas— 

Actions fob Dailaob— Flkadirq. 
In an action against a carrier for damages 
to an interstate shipment of ho^, that the orig- 
inal petition declared on a written contract of 
shipment, and an amendment to the petition was 
on an implied contract, was immaterial, being a 
mere matter of procedure governed by the state 
practice. 

[Ed. Note.— For other cases, see Pleading, 
Ont. Dig. |{ 693, 694, 686; Dec. Dig. <S=> 
248(10).] 

6. Plkamhq «=»420(3)— Objectiostb— Ambnd- 
jDtNT— Waivkb by Answebino Oveb. 

In an action against a carrier tor damages 
to an interstate shipment of hogs, a variadce 
between the original petition and an amended 
petition was waived by answering over. 

[Ed. Note. — For other cases, see Pleading, 
Cent Dig. i 1411 ; Dec. Dig. «=>420(3).) 

7. Cabbiebs <&=>S9— Cabbiaoe of HoOs— Con- 
necting Carbiebs. 

Although under Interstate Commerce Act 
Feb. 4, 1887, c. 104, 24 Stat 379, a connecting 
or succeeding carrier would ordinarily be re- 
quired to take an interstate shipment, yet, it 
before the shipment reached the defendant's line 
its bridge was out so that it was impossible to 
carry the hogs to destination within a reasonable 
time, defendant had tlie right to refuse to take 
the shipment unless the shipper would agree 
to make the shipment subject to delay on account 
of the bridge, provided it notified the shipper 
before accepting the shipment 

[Ed. Note. — For other cases, see Carriers, 
Cent Dig. S 98; Dec. Dig. «=939.] 

8. ComtEBOi: ^::>35— Cabbiaqe of Hoos— 

CONTBACT FOB TBANSFOBTATION. 

Where a shipper and succeeding carrier 
made an additional contract for the tranporta- 
tion of hogs, this did not change the through 
shipment from an interstate to an intrastate 
transaction, but became a part of the original 
contract of through shipment. 

[Ed. Note.— For other cases, see Commerce, 
Cent Dig. || 23, 26^ 89; Dec. Dig. «=>35.] 

9. PX.BADINQ «=>180(S)— Cabbiaqb of Hoas— 
Action- Dbpabttjbk. 

In an action against a carrier for damages 
to an interstate shipment of hogs, where plain- 
ly 



Google 



zR9 



18T SOUTHWESTERJf REPORTEK 



m. j 



tiff declnrea upon a contrnct of sMpmen!:, with- 
out eayiug whether it was written or cr(?atert 
by delivery and accentunce, nnd defendaot set 
up a written contract, plainlifTs reply denying 
the validity of the written coutract alleged by 
defendant, did not nialce any change in bis oaust 
of action. 

[Ed, Note,— For otber caaea, see PleadinB, 
Cent. Dig, §S 3G1, 365; Dec. Dig. ©=>1S0(3),] 

10. Pleading 1^=207— Plea din o Afteb IIe- 
ri-lf— iNecessitt of DsMimREB — L'uange of 
Cause of Actio!*. 

Rev. St. 1009, j 1S30, providing that no 
further pleading of tacts after the reply is nee- 
esKary to put a case at issue, does not ohviatp 
the_ necessity of apceiai demurrer, nttacking a 
pLiintilTs cause of action if changed by re[ily, 

[Ed. Note, — For other cases, see Pleading, 
Cent. Dig. |f 511, B12; Dec. Wg. iS=»20T.] 

11. PniNCIPAL AND AQENT iE=171 (9)— CON- 
TRACT Of Agent— Ratification, 

Plaintilf, by suing tltfee times on a contract 
with the Bucceefiing carrier nlle;e<l to have been 
signed by his agent witliout authority, ratiiied 
it and cannot now assert that the agent hud do 
authority to sign, 

fEd. Note.— For other cases, see Principal an(i 
Agent, Cent. Dig, | 655; Dec. Dig, C^niCJ),] 

12. Cabbiers iE=fi2 — Ca KB I AGE or Ho 08 — 
Contract- CoNSiUEEATioN. 

Where a shipment was subject to delay on 
account of a bridge of a conneetinc cnrrier be- 
ing out, a contract that the stiipment wag sub- 
ject to delay on account of the bridge, not agreed 
to before the shipment was Hccepted for trans- 
portation, was without consideration, and plain- 
tifTs subsequent ratification could not give it 
vitality, 

[Ed. Note, — For other cases, see Carriers, 
Cent. Dig, U 195-20C% ; Dec, Dig. C=o2,] 

13. CARRiEns <g=i207(2)— Cabriaoe op Hogs — 

CONTR.WT— "CONSIDEBAnO-V." 

Under Interstate Commerce Act, 3 1, as 
amended by 34 Stat, 5S4, proviclmg that a shiii- 
per is entitled to accompany live stocis if iic- 
cepted for siiiptnent, the fact that defendant 
carrier's conductor told plaintifTs BKeat, wlin 
was accompanying a shipment of hogs, that lie 
conld not do bo unless he sinned the contract 
did not fnrnish consideration for the contract. 

[Ed. Note.— For other cases, see Carrie. -a, 
Dec. Mk, <S=i207(2), 

For other definitions, see Words and Phrases, 
First and Second Series, Consideration.] 

14. Cabbters C^S.WfSl — CAJiniAOE of Hooa— 
Actio N^s— Question voh Jubj. 

In au action a;;sinst a suoceeding carrier for 
damages to an interstate shipment of hoes be- 
cause of delay ia delivery, wlicther an under- 
Btanding between the shipper and the defendant, 
that the shipment should be subject to delay be- 
Cflnse of a bridge heiiig out, was made before the 
defenijnnt nccepted the shipment for traus[jorla- 
tion held for the jury. 

[Ed, Note. — For other cases, see Carriers, 
Cent, Di^'. 3 SC2 ; Dec. Dig. <3='J,'',rK3).] 

15. CAitiiiEH.s €=>230fl)— Cabjiiaoe of Hoa3— 
Actions — Question for Jury. 

Where llicrc was eviilence that the hogs had 
become warm by piling up in the car, and then 
were unloaded into pens over the protest of the 
plaiotilTs agfiit, the question as to the diaea.se 
from which the hoga died, or what caused it, 
held for tlie jury, 

[Ed, Note,— For other cases, see Carriers 
Cent, Dig. ^ 062; Dec. Di);, iS=323i)(4l.| 

16. Carriers iS=>2,TO(8)— Triai iS=2.M(3)— 
Ikstkuctioks. 

An instruction which toW the Jury that, be- 
fore a verdict for plaintiff could be returned, 



they must find thnt 'lefetidflnt fallea to tnnivn 
the hoRs in a reaBonable time, anij thit b; nt- 
son of the failure the hogs were injured w thit 
-some of them died, was not improyer ai-il dul 
not submit a different case from thit iillfiA 
since it told the jury that the disease mmt ta 
cauacd by the unreasonable delay or tailuit tl 
transport witliin a reusoaabie time. 

[Ed, Note,— For other cases, see ChitUo, 
Cent, Dig. I oni; Dec. Dig, <S=2aOfSi; Ttill 
Cent. Dig, ; 590; Dec. Dig. iS=a25i(3).] 

17 TRIAL «=2C0(1)— lNSTEUCTio:«s Auieut 

GiVBN, 

The refusal of requeated inatructious whiji 
are fully covered by given inatructious ii at( 
error. 

[Ed, Note.— For other cases, see Trial, Ce* 
Dig, J 651 ; Dee, Dig. <!x=>2f(0(l).] 

la Thial «=5l.lO(ll— Question fob Iust. 

Because a (juestion of fact is clfi?e is no rw 
son for taking it out of the jury's bauds. 

[Ed, Note,— For otber cases, see Trial Ctu. 
Dig. II 332, 333, 338-341 ; Dec. Dig. G=i;;it KI 

Appenl from Circuit Court, Jaclisoti CofflJJ 
ty ; Chirenoe A, Burner, Jtnlgp, 
"Not to be offlciaUy published," 
Action hy Jamea J. Bowles a^" 
Quincy, Omaha & Ennsns City Eaili 
pony. Judgment for plaintiff, ana 
nnt appeals. Affirmed, 



-^ 



0. D. Jones, of Edina, and J. G. Trimble,* 
liansas City, for appellant, Atwood & UU 
of Kausas City, and Thomas Harley, of Ia% 
reoce, Kan,, for respondent. 

TRIMBLE, J, PlalntiEf's cause of acdi 
grows out of a shipment of hogs cluimedj 
have been damaged through defendant'* li 
ure to well and safely transport within a 
sourtbie time. The hogs were, on the 29til 
Deceuit)er, lt)09, delivered l>y plaintiff to 
St, Louis & San Fruaclsco Kallroad Com] 
[It West Plains, Mo,, for traiisijoriatli 
Kansas City, to be there delivered to 
uccling carrier for transi>ortatlon to 
.Mo., named as "the plat« of distlnati 
the written contract of shipment. In _ 
from West Plains to Kansas City, tbe' 
of the St. Louis & San Frandsc-o 
L'oiijptiuy runs out of Missouri Itito 
Iiassln;; through the cities of Ft. Scott 
Ohitliti In tliut state, and then eomes 
into Missouri. And the hogs, in (.'oaiiiis 
tliis line, were unloaded and fed la 
Kun, The defendant's line of railroad 
from Kansas City to Rnd through Ed: 
West gulncy. Mo, Plaintiff testified 
hoK:i were ijilled from West Plaias to 
luid the eviiiciice on botli sides Is tliat, 
the hogs arrived In Kansas Oty, pli 
l>iiij tiie frolgiit due both roads and the 
(hargos, all iu one paj lucnt, to the defei 
tite Quiiicy, Omalia & I^ansas City Bal 
Ciiiupiiuy, The hogs reached Kansas 
January 3, l!)li>, and at 0:30 p. tn. I 
I'-dina over the defendant's line. 
reached there at o'clock a. m. January 

Edina Is In Knox county, and on ^dny 



that 



i,^ 



mv\ plaintiff brought std^ there . 

©^For other cases Eiie sauio tuple and KEY-ni;.mder in all Kt^'-SkySSQrB^ iJlgelLk-iSir'^ 



Ho.) 



BOWIiEH T. QCIKCT, O. * E. a B. OO. 



133 



tendant alleging that fho bogs were delivered 
CO tbe St. Lotds & San Francisco Rallroaid 
CMnpany to transport them from West FUdns 
to Kansas Olty and then over ooAnecthig 
Hues to Bdtna, tbe dilpplng ccmtract being 
ffled tberewltb and marlced EiMblt.A; that 
the hogs were transported to Kansas Olty 
and delivered to the defeodbnt railroad com- 
pany whldi deoianded from the agent of 
plfilntur In charge of said hogs an addltl<Hial 
contract of ahlpmeat tberewltb filed, marked 
ExbUdt B ; that nnder said contracts It was 
Oie deteBdanf s doty to Immediately tTami> 
pwt said hogs from Kansas City to Bdlna, 
Int tbat In violation thereof defendant de- 
tained and xmloaded tals bogs In unhealthy 
pens and flipped them In unhealthy cars, 
whereby they contracted a disease from 
which many of them died. A trial resnlted 
In a verdict for plalntlfF. The' ease was ap^ 
pealed to tbe St lionls Oonrt of Appeals 
where It was reversed and remanded for tbe 
leason tbat there was no proof of mdMalthy 
pens and cars, and no canse of action arising 
out of damage from disease caused by negU- 
geat delay was )[»leaded In the petition, 
thont^ evidence was introdnced sufficient to 
mstaln, and tbe case was sabmttted upon, 
aald last named iasnek See Bowles- v. Qnin- 
cy, etc. R. Oa, 187 Mo. ^«P- 208, 1^ B. W. 
lOO. 

On Deoember 2, 1910, plaintiff flled an 
amended petition In tbe Knox circuit coart, 
setting np the same facts as to tbe two abip< 
ping oontracts as before, aad referring to 
tbem as being attached to the original peti- 
tion and goarked Stacblblta A and B respecQve- 
ly, and pleading tbat, tiy vlrtne of said con- 
tract. It becaaie tbe duty of the defendant to 
tranqwrt the hogs from Kansas CUy to Bdlna, 
within a reasonable time, bat tbat tbe da- 
fendant In violation of said contracts ne{^- 
gently failed to do so, bat detained the bogs 
whereby they were exposed to Indemait 
weather and contracted a deadly disease, 
from which 120 Of tbem died.' A change of 
Tenne was thereapon taken to Marlon coun- 
ty where defendant's motion to strike out the 
amended petition was sustained and the 
cause was dismissed. 

Afterwards, on June 6, 1014, tbe present 
(Dlt was tnatltuted in the drcoit court of 
Jackwm county. Mo., tbe petition alleging 
ttiat-on tbe 29th day of December, 1009, 
plaintiff delivered to tlte St Loois & San 
Francisco Railroad Oompany at West Plains 
146 bead of hogs for transportatlom to Kan- 
sas City, Mo., there to be deliveced to tbe 
defendant company to be transported to 
Bdina; that tbe St Louis & San Frandsoo 
Bailroad Company did transport said hogs to 
Kansas Oty, Mo, and on January 3, 1910, 
<ldlva«d said hogs. In a healthy condition, 
to detendant; tbat defdendaat accepted tbem 
for transportation and contracted with plain- 
tiff to transport tb«n from Kansas City to 
Bdina to be there delivered to plaintiflt said 
osntiact at Aiftmeatbalng thereto attached 



and marked as an exhibit This written coo- 
tract was tbe one designated as being marked 
B In tbe two former petitions in the Knox 
drcnit court The petition farther alleged 
that under said contract It became the duty 
of the defendant to transport the hogs with- 
in a reasonable time, but that it negligently 
failed to do sot that because of the negli- 
gent failure so to do the hogs were exposed 
to oold and storms en route, and, as a direct 
result of such unnecessary exposure and de- 
lay, 120 of th«n became sick and died; 
wherefore damages were prayed, etc. 

To this t^e defendant flled an answer ad- 
mitting that It recdved the hogs and execut- 
ed the contract sued on, but denied all else. 
The answer then alleged that dortag the 
night or early in tbe morning of January 3, 
1910, a bridge on its line was destroyed by 
fire and, before executing the Uve stock con- 
tract attached to plalntlfl's petition, defend- 
ant Informed plaintiff of ttds fact and ac- 
cepted said hogs with tbe understanding, 
and as a part of tbe contract expressed there- 
in, Oat the same were received subject to 
delay on account of said bridge being out; 
tbat said bridge was rebuilt as quickly as 
possible and said hogs were carried forward 
as soon as said bridge was ready for use, 
wblch was on the morning of the 4th day of 
January, 1910; that It was true tbe bogs 
were not delivered at Bdlna until the morn- 
ing of tbe 6th of January, but that said de- 
lay was not nelsUgent, but caused solely by 
destruction of said tnidge which was known 
to plaintiff at tbe time the contract was en- 
tered into, and against delay on account of 
which said contract provided. 

On January 11, 1915, plaintiff filed an 
amended petition, being tbe one on which 
tbe case was trfed. This amended petition 
alleged the filing of the suit In Knox county 
and tbe subsequent dismissal thereof, and 
tbe bringing of tbe present suit within one 
year after the order of dismissal. The 
amended petition further alleged that plain- 
tiff— 

"delivered to the St. Louis ft San Frandsoo 
Railroad Company at the city of West Plaiss, 
Mo., 140 bead of bogs for tcansportation from 
West Plains,Jfo., to Edina, Mo., to be trans- 
ported from West Plains, Mo., to Kansas City, 
Mo., by the St. Loals & San FranclBCO Railroad 
Company and to be transported by the defendant 
atx)Te named to Edina, Mo., oven the line of the 
defendant railroad company." ' 

The petition further alleged tbat on Janu- 
ary S, 1910, plaintiff paid to the defendant, 
Quincy, Omaha ft Kansas City Railroad 
Company, the sum of (76, "being the freight 
charges from West Plalns> Mo., to Sdina, 
Mo.'.'; tbat on the Sd day of January, 1910, 
sajid shipment was received by defendant and 
acowted for transportation from Kansas 
City to Edina, Ma; tbat by reason of tbe 
payment of said charges and tbe acceptance 
of said shipment it became the duty of the 
defendant to well and safely 
sblgment within a reasonable 



le duty of the ^^ 

'^tTeT'^riy Google 



134 



187 SOUTHWESTERN REPOKTBB 



<Mo. 



roasonalde time was 13 hours and tbat de- 
fendant, by the exercise of reasonable care 
and diligence, conld have transported the 
hogs In that time, bnt did not deliver them 
at Edina until after the lapse of about 39 
hours, after the hogs were accepted for ship- 
ment and left Kansas City; that defendant 
delayed the shipment in transit and unload- 
ed the hogs at Milan, Mo., and there delayed 
them unreasonably and unnecessarily; that, 
had they been transported in a reasonable 
time, It would not have been necessary to 
unload them at Milan, and, by reason of the 
delay in transit and the unloading at Milan, 
the hogs were exposed to cold and stormy 
weather and, as a direct result of said de- 
lay and unnecessary unloading, 122 of said 
hogs died within two or three weeks after 
they were unloaded at Edina. It will be 
noticed that the plaintiff makes no mention 
of any written contract of shipment in this 
amended petition, merely alleging the deliv- 
ery to, and the acceptance by, the defendant 
railway of the hogs, and the consequent duty 
of the defendant to well and safely trans- 
port within a reasonable time, and the con- 
tracting of disease by the hogs as a result 
of such delay. 

The defendant unsuccessfully moved to 
strike- out this amended petition, and then, 
on February 12, 1915, filed an answer there- 
to. Said answer admitted that it received 
the hogs on January 3, 1910, at Kansas City, 
to be transported by it to Edina, and alleged 
that plaintiff and defendant then and there 
executed the written contract attached to 
and sued upon in plaintiff's original petition. 
The answer then set up the destruction of 
its bridge, as before, that defendant in- 
formed plaintiff It conld not accept said ship- 
ment, except on condition that it he subject 
to dday on account of said bridge being out, 
and that the shipment was received subject 
to delay and that this was expressly stipu- 
lated in the contract The answer further 
set up that the bridge was rebuilt as quickly 
as possible, and said hogs carried forward as 
soon as the bridge was ready; that the de- 
lay was caused solely by the destruction of 
the bridge, which was known to plaintiff at 
the time the contract was entered Into and 
against delay on account of which said con- 
tract provided. The answer further pleaded 
a stipulation in the contract that defendant 
should not be liable for injury to the hogs on 
account of heat or cold, or any other cause 
which might result from the nature of the 
animals. 

To this answer, plaintiff, on February 18, 
1915, filed a reply denying generally the new 
matter, and then set up that the contract re- 
ferred to In defendant's answer was not exe- 
cuted until after the hogs had been delivered 
to and accepted by the defendant, and the 
freight charges from West Plains to Edina 
had been paid and the hogs were actually in 
course of transit on the train ; and tbat then 
the conductor in charge of the train pre- 



sented said ocmtract to one Mnri^, who 
was plaintiff's agent in charge of and ac- 
companying the hogs, and the same was 
signed by said Murphy without authority 
from plaintiff, and without plaintiff's knowl- 
edge or consent; that signing such a contract 
was outside the scope of his employment; 
and that, at the time the hags were accepted 
by defendant, no notice was given plaintiff 
of any bridge being destroyed or that the 
transportation of the hogs would be delayed 
thereby ; and that the contract set op by de- 
fendant was null, void, and without consid- 
eration. 

The case was then tried and the Jury re- 
turned a verdict for plaintiff in the sum of 
$938.10. The defendant has appealed. 

[1-4] It will be observed that the plaintiff 
in both the original and amended petitions 
In this suit, pleaded facts showing a throng^ 
shipment from West I>lalns to Eldina, by way 
of Kansas City, and payment of the charges 
for such entire transportation in one sum. 
Not only do the two petitions in this suit 
show the shipment to have been a through 
shipment from West Plains, via Kansas City, 
to Edina, but the two petitions filed by plain- 
tiff in the Knox circnit court allege the same 
thing and state that there was a written con- 
tract for said ehlpm^it entered Into at West 
Plains ; and the evidence in the present salt 
shows that said written contract entered in- 
to at that place, between plaintiff and the 
St Loala ft San Francisco Ballroad Com- 
pany, called for transportation of the bogs 
from West Plains to Kansas City, there to 
be delivered to a carrier whose line formed 
"a part of the ronte to Eldina, Mo., the place 
of destination." The conceded facts show 
that the shipment for a portion of the way, 
went into the state of Kansas, going through 
several towns theieln, at one of which the 
hogs were unloaded and fed. The shipment, 
therefore, was an interstate shipment Han- 
ley V. Kansas City, etc, B. Co., 187 U. & 
617, 23 Sup. Ot 214, 47 I.. Ed. 333. The 
Carmack Amendment required that the con- 
tract for the shipment by the initial car- 
rier should be In writing. 34 U. S. Stats. 
at Large, 595; Adams Express Co. ▼. Cron- 
Inger, 226 U. S. 491, loc. dt 604, 33 Sup. 
Ct. 148, 67 L. Ed. 814, 44 L. B. A. (N. S.) 267. 
And the fact that the shipping contract, is- 
sued by the San Francisco railroad at West 
Plains, specified that it was to carry the 
shipment to Kansas City and there deliver it 
to the connecting carrier makes no differ- 
ence, because "it is the diaracter of the serv- 
ice rendered, not the manner in which the 
goods are Mlled, which determines the in- 
terstate character of the service^" United 
States V. Union Stockyards, 226 U. a 286, 
loc. dt 304, S3 Sup. Ct 83, 87 Ij. Bd. 226. 
See, also, Southern, etc., Terminal Ga ▼. In- 
terstate Commerce Commission, 219 IT. S. 
498, 31 Sup. Ct 279, 65 Ij. Ed. 310; Ballroad 
Comm. V. WortUngton, 226 U. 8. 109. 32 > 
Sup. Ct 663, 66 U Ed. 1004; Ballroad OoBuair (3 



le 



Mo.) 



BOWLES y. QUIKCT, O. * K. O. R. 00. 



136 



T. Ttixu & Paclfle Ry. Co., 229 XT. S. SS6, 83 
Snp. Ct. S37, 57 L. Bd. 1216. 

Y&ry likely, bowerer, the fact of the ablp- 
ment herein being Interstate In Its charac- 
ter eaanot make any material difference in 
tUa case. For, while the federal legislation 
upon the Uablllty of carriers in Interstate 
commerce mpereedea all state regnlations 
and policies on the snbject, yet it did not 
destroy, bat was Intended to continue in 
tone, any right which the shipper had nn- 
der the general common law, not Inoonsist' 
ent with federal laws. Texas, etc., B. Oa T. 
AbUene Cotton Hills, 204 V. S. 426, 27 Snp. 
Ct 3S0, SI Ij. Ed. 668, 9 Ann. Oas. 1075; 
Adams BzpresB Cio. r. Croninger, 226 U. S. 
507, 33 Snp. Ct 148, 67 L. Bd. 314, 44 L. 
B. A. (N. S.) 267. And since the right songht 
to be enforced by the plaintiff herein is one 
tmder the general common law, which the 
Meral act conttnuea in force, the rights of 
the parties bM«to can be affected, by the 
tact of the ahipment being interstate, only 
by reason of something in the contract of 
gbipment which, under federal law, has an 
Influence upon such rights. The federal law 
requires the initial carrier to execute a writ- 
ten shipping contract bnt it does not say 
tbat if the contract Is not in writing it will 
be TOld. So that there Is nothing In this 
case to compel plaintiff to state a written 
contract of Bhipmait, but he may, as he did 
In the amended petition, merely allege a con- 
tract t)t abipment without saying whether it 
was in writing or not In such case the de- 
fendant, if It desired to rely upon any de- 
fenslve terma thereof, could set up the writ- 
ten contract and obtain the benefit of same. 
Neither Is plaintiff limited by the federal 
act to a suit based solely on negligence, since, 
as stated, the oommon-Iaw rule of liability 
was not affected thereby, and such common- 
law Uablllty went beyond negligence and 
made the carrier liable for any loss or dam- 
age not the act of God or of the public ene- 
my. Adams Bzpress Oo. t. Oroninger, 226 
XT. 8. 491, loa dt. 509, 83 Sup. Ot 148, 67 
U Ed. 814, 44 L. B. A. (N. S.) 267; Collins 
r. Denver, etc., R. C!o., 181 Mo. App. 213, 
167 a W. 1178. 

[1-7] Neither does It make any difference 
that tbe original petition declared upon a 
written contract of shipment and asked for 
damages based upon negligent delay, while 
the amended petition says nothing about a 
writtoi contract and sues upon the violation 
of an Implied contract to well and safely 
transport and deliver within a reasonable 
time, because this is a mo-e matter of pro- 
cedure to be governed by state methods. If, 
nnder our procedure, the amended petition 
was not a d^mrture, or If a departure, was 
cured by answering over, then there can be 
no complaint upon that score. And although, 
vndar the federal act, defendant as the con- 
necting or SBCoeedlng carrier would ordi- 
narily be teqalmd to take the interstate ship- 
■eat at Kuisaa Qty nodar tbm West Plains 



ccmtract, yet. If before the shlpm^t readied 
defendant's line. Its bridge was out so that 
it was impossible to carry the hogs to Edlna 
within a reasonable time, defendant had a 
right to refuse to take the shipment unless 
the shipper would agree to make it subject 
to delay oa account of said bridge; and de- 
fendant had a right to demand that such 
a provision be Inserted fOr its protection in 
the shipping contract, provided It notlfled 
plaintiff and got bis consent thereto before 
accepting the shipment and starting the hogs 
from Kansas Oity. This right existed and 
was the same whether the shipment was in- 
ter or intra state. In either case the de- 
fendant must InaiBt upon the bridge dause 
and notify plaintiff thereof before accept- 
ing the hogs. 

[I] Vot would the making of the new con- 
tract, which defendant relies on, change the 
through shipment from West Plains to Bdi- 
na to one only from Kansas City to Bdlna, 
nor reduce the through shipment, as to this 
defendant, from an interstate to an intra- 
state transaction. If the new or additional 
contract is valid and binding upon the par- 
ties, Its effect was merdy to add an addi- 
tional feature to the through contract of 
shipment executed at West Plains, said ad- 
ditional feature being made necessary by 
tbe toldge being out on defendant's line. 
If Talid, said additional contract became a 
part of the original contract for through 
shipment the same as if it had been insert- 
ed in said contract at West Plains. So that, 
as the case now presents itself, the tact that 
the shipment was in realit7 a through ship- 
ment from West Plains to Bdlna and was an 
interstate shipment, even as to this defend- 
ant, does not seem to be of vital importance. 
For while the liability of the connecting, as 
wen as that of the initial, carrier la governed 
by federal laws and decisions (Kansas, etc., 
B. Co. T. Carl, 227 U. S. 639, 648, 33 Sup. 
Ot 391, S7 L. Ed. 683), yet it la not shown 
wherein they afford either of the parties 
any different rights than they have nnder 
state laws or would have had were the 
shipment an intrastate one. The fact that -^ 
the contract at West Plains was one for 
a through shipment and that, as the 
transportation was one in Interstate com- 
merce, the defendant herein would ordinarily 
take, and be required to take, the shipment 
on that contract without executing one of its 
own, may be a circumstance tending to cor- - 
roborate plaintiff in his claim that no Ship- 
ping contract was demanded by defendant 
before accepting the hogs at Kansas City, 
and that tbe contract defendant relies upon 
was not presented to, nor signed by, bis 
agent. Murphy, until after the hogs had left 
Kansas City on their way to Edlna. It 
should be stated here that said contract con- 
tains a provision stating that the shipment 
is "subject to delay account of bridge out" ^-^ . 

Plaintiff says that Murphy wad without au- ( tOOOIp 
thffirity to sign same and tha^ as It vrwiif ^^^^^^^^^ 



136 



187 SOUTUWESTKRN RErORTEtt 



Of* 



signed after the hogs had been accepted 
and the contract of shipment had thereby be- 
come complete, there was no eotiaideratlua 
therefor; and that plaintiff was not In- 
formed of any bridge being oat before the 
hogs started. The fact that the West Plains 
contract was for through shipnii^ut and (he 
transportation was interstate tends to roalce 
reasonable the claim of plaintiCT that defend- 
ant took the hogs and started with theui be- 
fore demanding the contract of shipment it 
now relies on. 

Having failed to find (any reason why 
plaintiff's case should fall because of tha in- 
terstate nature of the shipment, we proceed 
to consider other points. 

The point that the amended petition was 
a departure from the original cannot avail 
defendant. For even if it be a departure 
(which we do not decide), yet defendant 
waived the same by answering over. Blan- 
chard v. Dorman, 236 Mo. 416, 130 S, W, SOo ; 
Llese V. Meyer, 143 Mo. 647, 45 S. W. 282; 
White V. St. liouls, etc., R. Co., 202 Mo, 539, 
JOl S. W. 14. 

[S] We do not understand that the reply 
filed by plaintiff made any change In the 
cause of action he alleged. The cause ot 
action alleged by him was upon a rlolatlon 
of a shipping contract This contract was, 
in reality, under tke drcumstanies as here- 
inabove shown, the throu^ abipplns contract 
made at West Plains plus the amendment 
thereto, made by the alleged contract relied 
upon by defendant if It was valid. If It was 
not valid, either because not signed by any 
one having authority or because of no con- 
sideration, then the contract of West I'lalus, 
without modification, was the sliliJijiu^r con- 
tract. In the amended petition plaiotllT de- 
clared upon a contract without saying wheth- 
er it was written or was merely crfuted by 
delivery and acceptance of the hogs. De- 
fendant set up the contract it saya It ob- 
tained at Kansas City. The reply merely 
says that the Instrument defendant claims 
was the contract is, in fact, no contra L't at 
all; in other words, that said instrument 
cannot 'affect the rights of the parties as 
shipper and carrier. There la tio que.stlou 
but that the hogs were received aud carried 
by defendant; and although the shipment 
was, in fact, governed by the 'VV^cst PlaiDH 
contract, either modified or not niodltlcd tiy 
the alleged lilansas City contract accord lug 
to whether the latter was valid or void, stlil, 
as we have seen, there is nothing to prevent 
plaintiff from declaring upon a contract aris- 
ing from delivery and acceptance aud with- 
out, pleading a written contract. If (here 
was anything in the West Plains contract 
which made the parties' rights dllTer from 
that implied by law, or if said contract con- 
tained any defensive clause, the dereudant 
was at liberty to set up that facL But It did 
not do so. The element It relies upon is 
contained aolely In the Kansas Olty contract. 
If now, it should turn out Utat the Kansas 



City contract was void and of no effect, tlifj 
plaintiff can, ou the cause ot artltia ttuteil 
Ui its ameudcd petition, proceed lo hU ft- 
fort to obtain a judgment. In i>tb«r wor4», 
plaintllTs cause of action rcmaim tbe si: 
throutrhout ; but whether it may or inii) 
be affected by the Kansas City contraa 
pends upon whether It is valid or tioL 

[1 0] Defendant, however, soys that the 
pty changed the cause of action and, BS< 
was not filed until February 18, 1915, 
was more than five years after the laji 
the claim Is barred. But, even If the 
changed the cause of action (whldi we it 
not think It did), nevertheless the hw «t 
the statute wag not raised. Defeadaat Mft 
It bad no opporttinlty to plead the statdi 
as the change arose on the reply. It is VWt 
under section 1830, H. S. Mo. 1900, no fll^ 
iher pleadiug of facts after the re[)iy is att 
essary to put a case at Issue ; hut this iim 
not obviate the necestjity ot attackiug llM 
plaintiff's cause of action by spedal dt•aIa^ 
rer. Section 1811, B. S, Mo. 1909; Rk-iiMti 
V. Hart, 73 Mo, App. 617, loc. dt 654; 
A Frerichs, etc., Co. v. Lackawanna 
100 Mo. App. 164, 73 S. W. 340. 

[11,12] Even if plaintiff's agent, Mni 
who aecompauled the boss, .was without 
thorlty to sign the Kansas City coutmct, 
plain tier, by three times suing on the 
tract, ratlQed It and cannot now 
had no authority to sign. But Uiis ral 
tion cannot give vitality to the com 
there was no consideration therefor. 
the contract, that the shipment was sul 
to delay oa account of the bridge, was 
agreed to before the hogs were accepted 
transportation, there was no considei 
for such, contract. If the hogs were ai 
for transportation without notifying p! 
or bis agent of the bridge being out, 
without au understanding that the shii 
was sulijeet to delay on that account, 
the coutract to carry in a reasonable 
was complete, and there was no coiisldei 
to plaintiff for any addition to or m 
went of that ctmtract 

LI 3J The fact tliat the conductor told 
tiff's agent Murphy that he could not 
liliu unless he signed the contract did 
turuish any consideration; since M 
was entitled under the law to accompaofj 
hogs if accepted for shipment See 
of Commerce Act as amended. Jtuie 20, 
3-1 Stats, at Large, 5S4. So that the 
tlon of the defensive provision that tlie 
luent was accepted "subject to del.iy 
after all Is said and done, down to the 
question as to when this iinderstundla£, 
tuHtract was had, whether befoie or 
the hugs were accepted by defeadaot, 
shipment from KausiJs City. 

[14] Upon this feature of the case, tin 
diet of the Jury must be accepted 
miuutive of the fact that thegre was t» 
dei'^ lauding Uiat the ahipaieut should 
subject to 'fyfMjz|§^g'\^«l3^0f^ 



1«.) 



TUITE V. StrPRBaiB VOKEST WOODMEN CIRCLE 



137 



IS City, as the plaintiff offered ample tee- 
jDony to support that finding. 

[15] It Is dalraed that there Is no evidence 
rom which the jury could find that the ex- 
ostire of tibe ho^ to cold and stormy weatii- 
r during the delay in transit from Kansas 
Ity to Edlna caused the disease from which 
ley died. As to what causes or produces 

disease is frequently a subtle and dlQScult 
liD^ to discover. But nevertheless the ques- 
OD Is for the Jury, If there Is any substan- 
al basis for a reasonable Inference as to 
le cause. It Is true, the weather was cold 
nd stormy at Olathe, Kan., .where the bogs 
«re unloaded before tbey came Into defend- 
nt's hands. But the evidence Is that the 
Dgs .were all right and In good condition 
hen they left Kansas City ; that during the 
elays at places between Kansas City and 
dlna they were exposed to extreme cold 
eather and were in transit for 89 hours, 
ilng 13 hours longer than reasonable and 
minarily required; that they suffered and 
lasifested their suffering by squealing and 
iliog DP in the car; that they were un- 
»ded at Milan Into pens, over the protest 
( Murphy who had signed a 3ft-hour release 
) avoid unloading them in compliance with 
» federal 28-hour law (Act June 29, 1906, 

3594, 34 Stat 607 [U. S. Comp. St 1913, 81 
331-«654]), and said hogs remained In the 
ens for 9 hours; and that they were lo 
>d condition when they arrived at Edlna. 
iiere was evidence that the getting of the 
ogs very .warm by piling up In the car 
nd then exposing them to cold will bring 
n pnetunonla, and that the disease of which 
lese hogs died was pneumonia. It was for 
le jnry to say w&at was the disease of 
tich tbey died and what caused the dls- 
we. We cannot say,, as a matter of law, 
Mt the evidence of other possible causes 
'as sQdi as to make it mere conjecture on 
^ jury's part as to the disease the bogs died 
t, or as to the cause of the disease or when 
icb cause arose. There la evidence that 
a« hogs did not manifest the symptoms c^ 
Krfeedlng claimed to be one of the possl- 
le causes. And as to tbe hoga having chol- 
r« there Is evldenoe that they dW not have 
i>*t: that they bad not been exposed to It; 
^t hogs fed right by them .with only a 
nee OT lane between did not talse cholera 
r become diseased, and that pseomoiola Is 
°t a contagious disease, wblle cholera is. 
*iie Of defendant's experts teetlflcd that ex- 
osnre wiu bring on pneomonla in bogs, and 
neufflonla, by lowering tha vitality, will 
lake them more susceptible to tbe disease' of 
bolera. If, In this way, the exposure brought 
1 cholera, plaintiff would still be entitled to 
wover since his petition dW not specify 
rhat the disease was. 

[II] Haintirs instruction No. 1- dW not 
ibmlt a different case from that alleged In 
lie amended petition. Betot* a verdict in 
Wntirs favor could be returned, the in- 



struction, among other things, required tbe 
Jury to And that defendant failed to trans- 
port the hogs in a reasonable time and that 
by reason of said failure the bogs were in- 
jured, so that 122 of them died. This told 
the jury that the disease must be caused by 
the unreasonable delay or failure to trans- 
port within a reasonable time. Defendant's 
Instruction No. 16 told tbe jury that If such 
delay was not the sole cause of tlie death of 
the hogs the verdict must be for defendant; 
and its instructions No. 14 and 16 told tbe 
jury that the delay must be shown to have 
been a negligent delay and that it was the 
sole cause of tbe death of tbe bogs. Were 
It not for these instructions given In defend- 
ant's behalf, the refusal of defendant's in- 
struction 3 .would have been error, but as No. 
3 was fully covered by Instructions 14, 16, 
and 16, its refusal did no possible harm. 

[17,18] We have carefully gone through the 
voluminous record in this case to see wheth- 
er or not there is reversible error in it The 
questions as to what the hogs died of and 
as to what was the cause of their death may 
be subtle and difficult of ascertainment No 
doubt there is room for suspicion of the 
claim that the hogs had pneumonia caused 
by exposure, and reasonable minds might 
hesitate at accepting that view; but, un- 
der the evidence in this case, disinterested 
reasonable minds could reasonably draw dif- 
ferent conclusions therefrom, and this makes 
it a question, not for us, but for the jury. 
Because a question of fact is close Is no rea- 
son for taking it out of the jury's bands. 

Finding no reversible error in tbe case, we 
must affirm the judgment 

It Is 80 ordered. All concur. 



TUITB V. SUPREME FOREST WOODMEN 

CIRCLE. (No. 12030.) 

(Kansas City Conrt of Appeals. Missouri. 

June 12, 1916.) 

1. iKStJOANCB «=>712— FOATEBNAL BBNKFICI- 

ary insubanok — bineficiabies — what 

Law Oovebrb. 

Under Rev. St 1909, { 7190, providing for 
tbe . payment of death benefits to tbe fanuliea, 
heirs, blood relatives, or persons dependent upon 
the member, and In view of Rev. St 1909, || 
1671-1678, making an adopted child the hiir c£ 
the adopting parent a foreign fraternal benefi- 
ciary society licensed to do business in the state 
and to issue to beneficiaries, certificates includ- 
ing the "adopted children • • • or other rel- 
atives," the term "other relatives," appearing by 
the context to refer to blood relatives, would b« 
accorded tbe benefit of the lavrs of this state re- 
lating to such insurance, as there was no sub- 
stantial difference between the classes of bene- 
ficiaries. 

[Ed. Nole.— For other cases, see Insurance, 
Cent Die i§ 17^176^ 298, 1934; Dec. Dig. 
<S=»712.] 

2. iNSUBAROK «=»724(1)— Fratsbnal Insub- 
ANOB— Co NT8A0T— Ultra Vibes— Watveb. 

A frnternal beneficiary association, charter- 
ed by a state whose laws forbade the issuance 
of a death benefit certificate to any one over 65 



ttsFor other cuai tea ■am* topic and KB¥-NUIfBSR tn all Ker-Numberad DlgesU and Indexyi 



r gitizec 



138 



18T SOUTHWBSTBtRN BBPORTIOt 



(Mo. 



yean of ago, and whose charter fixed the mast- 
mum rate at B2, and which on investigatioa aft- 
er the death of a member and its conviction that 
he had intentionally misrepresented his age as 
60 instead of 60 or 61 years, could not waive 
or estop itself from setting up the defeose that 
the certificate was ultra vires and void, as tfa« 
association could not be bound by waiver or es- 
toppel to a contract which its charter would not 
authorize. 

[Ed. Note.— For other cases, see Insnraaee, 
Cent. I>ir H 1837. 1886, 1868; Dec. Dig. «s> 
724(1).] 

8. iNBUBAircE «s374S—Fbaibknai. Iimnunca 

— OONTBACT— UiTRA. ViBES— KEMEDX OF IW- 

aUBEB. 

If the insured was older than the maximnm 
age at the time he applied for Us certificate and 
membenhip, the only remedy which his benefi- 
ciary might ^iforce against ue insurer would be 
to recover back the money insured had paid for 
insurance. 

[Ed. Note.— For other eases, see Insurance, 
Cent Dig. f 1888; Dec. Dig. «=3»743.] 

4. Insurance €=»783 — Fbatebnal Inbub- 
ANCE — Interest of BEREnciABr. 

The interest of a beneficiary in a cettiflaat* 
before the death of the insured, is only an ex- 
I>ectancy, and not a vested interest. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dig. { 194»; Dec. Dig. «=»783.] 

5. Eyidence €=3252— DXCI.ABATIONS Against 
Intebest — AOE. 

In an action on a fraternal benefidary cer- 
tificate under which the benefidary before the 
death of the insured had only an expectant and 
not a vested Interest, evidence for the defendant 
of declarations respecting his age, made by the 
insured and which were against his interest, 
w«n admissihle. 

[Ed. Note.— For other cases, see Evidence^ 
Cent Dig. {{ 989-993; Dea Dig. <S=>252.] 

6. INSUBANOB «s»586— Lira INBUBANCB— IN- 
TEBE8T or BeNEFICIABT. 

Whore a contract is one of ordinary life in- 
surance, the benefidary acquires a vested inter- 
est therein from the date of the contract. 

[Ed. Not0— For other cases, see Insurance, 
Cent Dig. 1 1470; Dec. Dig. e=>586.] 

7. Evidence «=9252— Deglaraxions Against 
Interest— Admissibiutt. 

In such case, declarations of the insured 
impairing the vahdity of the insurance are not 
admissible in an action by the benefidary to re- 
cover the insurance. 

[Ed. Note.— For other cases, see Evidence, 
Cent Dig. Si »89-9«3; Dec. Dig. «=»252.] 

8. Evidence €=»285—HEABaAT— "Pedigree." 

An important exception to the general hear- 
say rule is that hearsay testimony Is competent 
in case of "pedigree," which term embraces, not 
only descent and relatiouship, but also the facts 
of birth, marriage, and death, and the time when 
these events happened, but not necessarily the 
question of age. 

[Ed. Note.— For other cases, see Evidence, 
Cent. Dig. | 1143; Dec. Dig. «8=»285. 

For other definitions, see Words and Phrases, 
First and Second Seiiea, Pedigiesu] 

a Evidence €=»285 — Heabsat-Pbdiq bee- 
Issue. 

In an action on a fraternal benefidary cer- 
tificate, evidence of self-serving declarations 
made by the insured respecting his age when he 
enUsted did not i>ut his pedigree in issue, and 
hence were inadmissible under the hearsay rule. 
[Ed. Note. — For other cases, see Evidence, 
Cent Dig. § 1143; Dec. Wg. <8=>285.] 



10. Evidence «s9601(1) — Opinion Bti- 
dbnce— Age. 

Where the age of the ioanred was in issue, 
opinions based entirdy on his appearance, and 
not accompanied by evidentiary descr^ition of 
bia appearance from which ther were tomted. 
were inadmissible. 

[Ed. Note.— For other cases, see Evidence^ 
Cent Dig. Si 2292-229S, 2299, 2302; Dec. Dig. 

11. Insurance «=9724(1)— Fbatbknai. Insub- 
ANOE— Rights or Insured — Rscovbbt or 
PamuuH— Tehdbb. 

In an action on a fraternal benefidary cer- 
tificate, where the insurer if sustaining the de- 
fense of ultra vires would be liable far the pre- 
miums recdved of the insured as for moaey nad 
and received, it was not bound to make a suffi- 
dent tender or any tender on pain of waiving its 
rights to defend on the ground of ultra vires. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. il 1837, 1866, 1868; Dec. Dig. «a> 
724(1)J 

Appeal from Clrcnlt Court, Jadkson Oonn- 
ty; Frank 6. Johnson, Judge. 

Action by Mrs. C. B. Tuite against Su- 
preme Forest Woodmen Circle. Judgment 
for plaintiff, and, ifrom an order setting 
aside the verdict and ordering & new trial, 
plaintiff appeals. Affirmed. 

Noyes & Heath, of Kansas City, for ap- 
pellant Harding, Murphy & Harris, of Kan- 
sas City, for respondent 

JOHNSON, J. This Is an action on a 
death benefit certificate for $1,100 issued 
April 80, 1900, by defendant, a fraternal ben- 
eficiary society incorporated In Nd>raska, to 
Michael T. Tuite, a residoit of Missouri 
Plaintiff, the wife of Tulte^ was deolgiiated 
In the certificate as the benefldaTy. Tuite 
was a member of a local lodge of the order 
in Kansas C3ity and paid all dues until his 
death, which occurred at the Soldiers' Home 
tn Leavaiworth, Kan., on August 6, 1913. 

[1] The answer alleges, and the proof 
shows, that ■whesa Tuite Joined the order and 
ai^lied for the certificate, and at all times 
thereafter, defendant waa a fraternal bene- 
fidary society Incoiporated In Neinaska and 
regularly license to do business as such in 
this stata Plaintiff argues that the contract 
in question doea net fall within the purview 
of the laws of this state relating to frater- 
nal beneficiary societies for the reason that 
the lavrs at Nebraska and the cbarter of 
defendant autliorised the InduaitHi of "adopt- 
ed chUdroi * * * or other relatives" 
among the classes eBlgUde to designation as 
beaefldattes In death benefit certificates. 
The statutes of tlite state provide tliat: 

"FaymentR of death benefits shall be to the 
familiea, heirs, blood relatives, affianced husband 
or affianced wife of, or to persons dependent up- 
on the member." Section 7109, B. S. 1909. 

Plaintiff invokes the rule we recognized in 
Dennis v. Modem Brotherhood, 110 Mo. Appi 
210, 95 S. W. 067, that a foreign assodatloa 
would not be accorded the benefits of the 
laws of this state relating to fraternal ben- 
efidary sodeties where there was a substan- 



or other 



topic and KBY-'NUMBBR In all Kar-Numbared Dlgestk aod Indau* 



^le 



Uo.) 



TUITB T. SUPKEMS FOREST WOODMEN CIBCIjE 



139 



tlal dUTeranoe between tbe dasses of bene- 
fldaries snch association was authorised by 
Its cbarter to recognize as eligible, and the 
classes mentioned In our own statntes. But 
tbat role will not aid plaintiff. A fraternal 
8oclet7 Incorporated In this state may des- 
ignate an adoi)ted child of the member as 
the beneficiary In a death benefit certificate, 
since snch child, being an heir of the mem- 
ber (article 1, a 20, R. a 190&), belongs to a 
class spedfically moitloned In the statute. 
And we find the class "other relatlTes" ap- 
peals by Its context to refer to blood rela- 
tires, and therefore Is Identical with a class 
mentioned in oar statnta We hold the proof 
of defendant sa£Qclent to warrant ns in treat- 
ing tbe contract and the rights of the i>ar- 
ties thereunder as being governed by the 
laws and rules relating to fraternal bene- 
ficiary Insurance. 

[2, 3] The principal defense Is that tlie cei- 
tlflcate is TOld because its execution by de- 
fendant was ultra vires the power conferred 
apon defendant by Its charter from tbe state 
of Nebraska. The laws of that state forbid 
tbe issuance of a death benefit certificate to 
any i>eraon over 56 years of age, and defend- 
aot's charter fixed the maximum age at 62 
years. In his application dated April 18, 
1900, Tnlte declared he was "50 years of 
age at my nearest birthday" and "was born 
on the 29th day of September, 1850, in Ire- 
land." 

An investigation made after his death con- 
vinced defendant that he had Intentionally 
misrepresented his age, which, at the time 
of his application, was 60 or 61 years, In- 
stead of 60; but, as stated, the defense is 
that the certificate Is ultra vires and void, 
and not that it was merely voidable on the 
ground of false and fraudulent representa- 
tions respecting the age of the insured. As 
to such defense, there could be no waiver or 
estoppel, since defendant's oflScers, even If 
they had afterward been Informed of the fal- 
sity of the representation, could not have 
bound the society by waiver or estoppel to a 
contract which its charter from the state 
would not authorise. Edmonds v. Modem 
Woodmen, 125 Mo. App. 214, 102 S. W. 601; 
Steele v. Fraternal Tribunes, 215 Hi. 190, 74 
N. B. 121, 108 Am. St Rep. 160; State v. 
Bankers' Union, 71 Neb. 622, 9& N. W. 531 ; 
Gray r. Benefit Ass'n, 111 Ind. loc. dt. 534, 
11 N. B. 477. 

If Tnite was older than 62 years at the 
time be applied for the certificate and mem- 
bership, plaintiff has no cause of action on 
the certificate which would be void, and the 
only remedy she conld enforce against de- 
fendant would be to recover back the money 
Tnite had paid defendant for Insurance. 

The answer alleged the total amount so 
paid was $270.80, wbidi, with interest, de- 
fbtdant offered to refund and has paid Into 
court At the trial the parties Introduced 
eridenoe on the issue of Tulte's age when he 
made tbe appUctc^^n, and the ipxj were in- 



structed, in substance, that plaintiff would 
be entitled to recover tf he "was under the 
age of 62 at the time he made application 
and became a member Of the defendant as- 
sociation," and could not recover if his age 
was over 52 at that dme. The Jury decided 
this Issue in favor of {fiaintlff, but the court, 
on hearing the motion for a new trial, set 
the verdict aside for the reason, stated in 
the order:- 

"Tliat the court erred in admitting In evidence, 
over the objection of the defendant, self-serving 
dedarationg of Michael Tnite, tbe insured. In the 
contract sued on." 

Plaintiff appealed from the order and Judg- 
ment granting a new trlaL 

Defendant tntroduced In evidence the laws 
of Nebraska and its own charter and In- 
laws, whidi show that defendant was not au- 
ttiorlzed to issue a death benefit certificate 
to any parson over Si years of age, and al- 
so Introdnced both documentary and oral 
evidence which tended to show that Tnite 
was over 60 years old when he made the ap- 
plication. The muster roll of Company I, 
lO&th New Tork Volunteers, showed his en- 
listment as a pilvate on S^tember 9, 1862, 
and that he was 28 years old. Plaintiff ad- 
mitted that a witness named in an applica- 
tion for a continuance would Identify a rec- 
ord book kept at a parish church In Ireland 
and that the book would show that Tulte 
was bom September 29, 1836. A number of 
Bwom statements made by Tulte at different 
times to secure a pension, and an increase 
thereof, refer to the date of his birth as Sep- 
tember 29, 1836. 

There was more evidence of the same kind 
Introduced by defendant, and, on the other 
hand, there is evidence offered by plaintiff 
toidlng to prove that Tnite's age was not 
misstated in the application. Plaintiff and 
two other witnesses were permitted, over the 
objection of defendant, to testify that Tulte 
had told them that he was only 14 or 16 
years old when he enlisted in 1862, and had 
made oral declarations about his age which, 
if true, would corroborate his representation 
in the application; and, farther, plaintiff 
was allowed to show by several prominent 
citizens of Kansas City who had known 
Tulte that Judging from his appearance his 
age was not over 60 years at the time of 
application. 

[4-7] The evidence introduced by defend- 
ant of declarations respecting his age made 
by Tulte which were against his Interest 
were properly admitted, since the interest his 
benefidary had in the contract before his 
death was only expectant and was not a 
vested interest Where the contract Is one of 
ordinary life insurance, the beneficiary ac- 
quires a vested Interest therein from the date 
of the contract and declarations of the In- 
sured Impairing the validity of the Insurance 
are not admissible In an action by the bene- 
fidary to recover the insurance. Callies v. 
Modern Woodmen, 88 Mo. App. l^,q{Lt^,$^ 



ioogle 



140 



187 SOUTHWSSTB&N KEPORTEA 



Qlo. 



72 S. W. 713; Held ▼. Ins. Co., 88 Mo. 426. 
But erldeace of audi declarations is admissi- 
ble in an action on a fraternal beneficiary 
certificate because of the lack of any vested 
Interest in the beneficiary before the death 
of the insured. Callles r. Modem Woodmen, 
supra; Masonic Ass'n y. Bnncb, 109 Mo. 
560, 18 S. W. 25; Wells T. Mutual Benefit 
Ass'n, 126 Mo. 630, 29 S. W. 607; Supreme 
Knights T. O'ConneO, 107 Ga. 97, 32 S. E. 
946; Van Frank v. Benefit Ass'n, 158 lU. 
560, 41 N. B. 1005; Miblack on Benefit Soc. 
{§ 212-235. 

[8, 1] Evidence of declarations made by tba 
Insured In his o^m interest were self-serving 
and inadmissible, unless plaintiff is right 
in her contention that they related to a ques- 
tion of pedigree Involved in this action. An 
important exception to the general hearsay 
rule is that beaxsay testimony is competent 
in cases of pedigree, and "the term 'pedigree' 
embraces not only descent and relationship, 
but also the facts of birth, marriage, and 
death, and the times when these events hap- 
pened." Topper V. Perry, 197 Ma loc. dt 
542, 95 S. W. 206, 114 Am. Bt B^. 777, and 
authorities cited. But a question of age Is 
not necessarily one of pedigree, and "such 
declarations are deemed to be relevant only 
in cases in which the pedigree to which they 
relate is in issue, and not in cases In which 
it Is only relevant to the issue." Bowea v. 
Accident Co., 6S App. Div. 844, 74 N. Y. Supp. 
loc. cit 102; Eisenlord r. Clum, 126 N. X. 
652, 27 N. E. 1024, 12 L. B. A. 836; Insur- 
ance Co. V. Scbweock, 94 U. a 693, 24 L. Ed. 
294; Haynes v. Guthrie, 13 Q. B. Div. 818; 
State V. Marshall, 137 Mo. 463, 86 S. W. 619, 
39 S. W. 63. 

As is pertinently observed In Eisenlord v. 
Clum, supra: 

"As to what is a case of pedigree, an ezant- 
ination of the question shows ttmt a case is not 
necessarily one of that kind, because it may in- 
volve questiong of birth, parentage, age, or re- 
lationship. Where these questions are merely 
incidental and the judgment will simply estab- 
lish a debt, or a person's liability on a contract, 
or his proper setdement as a pauper and things 
of that nature, the case is not one of pedigree, 
although questions of marriage, legitimacy, 
death, or birth are incidentally inquired ot. 
Whittnck v. Waters, 4 C. 4 P. 375." 

In the present case, the question of pedi- 
gree was Impertiuent to any issue, since the 
action is merely one for the collection of a 
death benefit. Proof of age was not offered 
for any purpose connected with a subject 
of pedigree, and evidence of self-serving dec- 
larations made by Tuite respecting his age 
when he enlisted were the purest hearsay 
and should have been exduded under the 
general hearsay rule. 

[10] The opinions expressed by witnesses 
for plaintiff respecting the age of Tulte 
wbldi were based entirely on his appearance 



should not have been admitted orer the ob- 
jection of defendant, since they ware not ac- 
companied by an evidentiary description of 
the appearance from which the opinion was 
formed. The pertinent rule aimouuoed by 
our Supreme Court ig Qiat: 

"Where tlie age of a party is in issue, tfa« 
court may admit an expression of opinion by a, 
witness as to that age, baE^ on the appearance 
of the party at the time, accompanied with a 
description of the appoaranoe from which soch 
opinion was fonned." E}lsner v. Supreme Lodse, 
98 Mo. loc. dt 646, 11 S. W. 992. 

As is well said in Hartshorn y. Met. Life 
Ins. Co., 65 App. Div. 474, 67 N. 7. Supp. 14: 

"To entitle such evidenoe to any weight, ttie 
facts and circumstances uikon wUcb the opinion 

is based should be given, and the witness should 
first describe, as far as practicable, tlie appear- 
ance of the individual whose age is in question." 

See, also. Life Ass'n v. Teewalt, 79 Va. 
421 ; State v. Grubb, 65 Kan. loc. dt. 679, 41 
Pac. 951. 

The reason of the rale is obvious. Some 
people naturally grow old In appearance 
faster tbaa others. Conditions of health, 
modes of living, dress, associations, care, or 
freedom from care, are important factors 
wlilch hasten or retard the appearance of 
Time's ravages. That spedes of vanity 
which prompts a person, after reaching mid- 
dle age, to seem younger than he is, is com- 
mon and leads to deceptive practices and 
devices which sometimes are successful. The 
average person Is not an accurate Judge of 
ages from appearances, especially of those of 
persons not in his own period of Ufe. To the 
eye of 16, or of 30, for that matter, there is 
little. If any, noticeable difCerence between 
60 and 60. Opinions of age deduced from ap- 
pearances are the least reliable of all opinion 
evidence, and, as is said in the Hartshorn 
case, are worthless as evidence if unaccom- 
panied by the descriptive facta and drcum- 
stances from which the opinion is drawn. 

The court did not err in granting a new 
trial on the reason assigned in the order. 

[11 J The point urged by plaintiff that the 
tender by defendant of the money paid Into 
the order by Tuite was insufflclent in amount, 
if weU taken, could not create a liability on 
the certificate by waiver ox estoppel, since 
the defense of ultra vires, as we have said, 
cannot be waived. If defuidant bad no pow- 
er to enter into the contract, it has no pow- 
er to bind itself to become liable under such 
void contract Defendant is liable, if Its de- 
fense Is well grounded, as for mon^ had 
and received, and must restore all that it has 
received from Tuite with interest, but is not 
bound in this action on the certificate to 
mali» a sufildent, or indeed any, tender on 
pain of waiving its right to defend on the 
ground of ultra vires. 

The Judgment is affirmed. AU concur. 



Digitized by 



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B. U BORKB MUSIC CO. ▼. MLLLEB 



Ul 



DONOHO T. MISSOURI PAG BY. CO. 

(No. 1053T.) 

(Kaasaa City Court of Appeals. MiftfoorL 

Jwe 12. 1916.) 

1. Consis ^=>9fJ0i — Dkoibiows or UsmtD 
States Coubtb— Intebstatb Couuxbce. 

The law as expounded by the Supreme Court 
of the United Statee governs tte construction 
of contracts for shipment In interstate commerce 
tod sapersedes tha docttinea expounded by state 
euurts. 

[Ed. Note. — ^For other cases, see Courts, Cent. 
Dig. I 329: Dec Dig. ©=397(1).] 

2. Cabbikbs «=9l59(l, 3)— CoNTaAcra roB Cab- 
■lAOB or Goods— 9nFin:.ATioi(8. 

The provisiim of a contract ot ahipment in 
interstate conuneree between carrier and sUppcc 
teqairinc written notice of loas or damage is val- 
id and cannot be waived. 

rSd. Note. — For other eases, see Carriers, 
Cent Dig. U 6e8-«71. TOO, 7U, 714; Dec. Dig. 
<S=»lS9a. 3).] 
t. Casbiebs «sal60— 0>ntbacts fob Cabbxaox 

ov Goods — STiPUi.ATiOTf8. 
A contract between shipper and cairier lim- 
iting the time in which actions may be brought 
for loss or damage to an interstate shipment is 
valid and reasonable. 

[Ed. Note.— For other eases, see ' Carriers, 
Cent Dig. ft 231, 678; Dec. Dig. «=9l60.] 

4. Cakbiebs ©=9158(1) — Contbacts sob Cab- 

XIAOE OF OOODft— ^xiPTn.AnoKs. 
A contract provisiOD limiting the amount of 
recovery In case of loss or damage to an iatw- 
state commerce shipment is valid. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. H OBB, 706; Dee. Dig. «s»158(l).] 

Appeal from Circuit Court, Jadqun Coun- 
ty; J. E. Goodrich, Judge. 

AcUoD by Lester Don oho against the Mis- 
souri Pacific BaUway Company. Judgment 
for plHintlff, and defendaj^it appeals. Be- 
versed. 

Transferred by Supreme Court (184 8. W. 
1149). 

WliUe, Hachney A hfooM, of KanMB CUy, 
for appellanL D. C. Finloy utd Ben T. Hai>- 
din, both of Kati— Cltj, for lespondeot i 

ELUSON, P. X PlatntUX shipped a horse 
from Independenoe, Mo., to Denver, Colo. 
The contract of sUpment ' required wxitten 
notice of any loas or Injury te be g^van .to 
the deftodant It alao provided that the re- 
covery for any in>iiry to the horse should be 
limited to $1(X> and that any suit should be 
brought within six months ot Injury. The 
trial court practically Ignored these provl- 
slooa. No notice was given as stipulated, 
and this suit was not brought for more than 
one year after the injury. Brldence was ad- 
mitted to show the horse was a yaluable 
racer and that the damage d(Mie to him was 
from 9000 to $1,600. The verdict and Judg- 
ment were for $900. 

II] The shipment being Interstate, the law 
CDvemlng It, and the cotntract under wlilch it 
was made. Is exclorively as expounded by 
the Supreme Court of the United States, and 
tbe law as heretofore expounded by the Su- 



preme and appellate courts ot Vtefftate is 
now suiierseded In cases arising on such ship- 
ments. Donovan v. W^Us Fargo Co., 266 Mo. 
291. 177 8. W. 639. 

[2] Under the dedslonD of the Supreme 
Ck>urt of the United States, tite contractual 
PBOvisiooi as to notice is valid* and it cannot 
be waived. Banalca v. BaUroad, 186 S. W. 7, 
and Konper MlUlng Oa r... BaUroad, 186 S. 
W. 8 (decided by us at this term). In 
these cases we have dted rulings of tlio Su- 
preme Court of the United States as late as 
May 8, 19l6w Georgia, Flor. & Ala. BaUroad 
V. BUab MUUng Ca. 241 U. S. 190, 36 Sup. 
C!L Ml, 60 U Bd. — 

m So, too, a contract limiting the time 
in wUl<^ actions may be brou|})it for loss of 
dilpments, or Injury thereto,' Is legal and rea- 
sonabla Mo., Kan. & Tex. By. v. Barriman, 
227 U. S. 667, 33 Sup. Ct 397, 67 L. Ed. 690. 

[*] So the right to Unit the amount of re- 
covery hi case of loss by stipulation In the 
contract of ahipment is upheld. Adams Ex- 
press Co. V. Oroolnger, ^26 U. 8. 491, 83 Snp. 
Gt 148, 67 li. Bd. 314, 44 Ix B. A. (N. S.) 267, 
and C, B. ft Q. By. r. MUler, 226 U. S. 613, 83 
Sup. Ct. 165, «7 U m. 828. 

It Mlows Chat Hm iadgment taust.be re- 
versed. All concur. 



B. L. BUBKB MUSIC CO. v. MUXB^. 

(No. 1782.) 

(Springflald Court of Appeals. MissoutL 

Jane 17, 191&} 

1; EvtoKfOi «=»441(9)— Pabojc EvJdbwob— 

BUIiB — A pMyfiaiTiTj.TTV -yn YaBZ WbITXEN 
lNIH'BIJME?iT. , ^ " ,_ 

Where a contract for the sale of a player 
piano on installments provMed for payment in 
mon^, pand evidence Is infldmlssible to shov^ 
that It was agreed tlkat payment should be made 
in services and other Tvays ; such provision be- 
ing part of the contract not susceptible of va- 
riation by parol evidence. 

[Ed. Note.— For other casea, see Evidence, 
Cent Dig. U 1787, 1793: Dec. Dig. <S=>141(a).| 

2L APPBAX and EBBOB <=»10ai(^— HaBMTiBBS 

Sbbos— DmpoxiON or Ybbpioz. 
Where the direction of a verdict for plain- 
tifl in replevin for a player piano was proper, 
defendant cannot object that the Jtnry were not 
required to find that his possession was unlaw* 
ful, etc.; the verdict in effect being a finding 
that plaintiff was entitled to possession. 

[Ed. Note.— For other cases, see Appeal and 
Bfror, Cent Dig. i 4211; Dec. IHg. 



1061(4).] 

Appeal from CUrcuit Orart, Jasper (boun- 
ty ; D. E. Blair, Judge. 

Action by tlie B. L. Bwke Music Company 
against Harry C. MUler. From a Judgment 
for plaintiff, defendant appeals. Affirmed. 

Owen & Davis, of Joplln, for appellant. 
E. S. MUler, of JopUn, for respondent 

STUBGIS, J. Suit in replevin for a play- 
er piano. The piano in question was sold 
by plaintiff to defendant, and the purchase 



sVor athar omm see sui* topio asAKXY-NTJliBfilB in »11 Kar-Numbar«d Dlswts aod Ioas*«i 



^ 



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142 



187 SOUOCWBSTBRN BBPOBTIflEt 



(Mo. 



price, to be paid In installments, was se- 
cured by a cbattel mortgage thereon. This 
mortgage contains the nsual proTislons that 
in case of defonlt In any ot the secured pay- 
ments the plaintiff, mortgagee, could fore- 
close the mortgage by taking the piano and 
selling the same for the purpose and on the 
terms specified. It is not questioned but that 
the defendant had made default in these pay- 
ments, was in possession of the piano, and 
refused to allow plaintiff to take same for 
the purpose of foreclosure. The amount se- 
cured by the mortgage is $810, of which the 
defendant had paid f 287.86, and there w.as 
due and unpaid when the suit was instituted 
$172.16. 

At the trial the defendant testified that 
he was engaged in the automobile repair and 
storage business at Joplln when he pur- 
chased this piano, and then offered to tes- 
tify and to prove by other witnesses that 
at the time of the purchase, and as a part 
of the agreement of purchase, it was verbal- 
IV agreed that the plaintiff would furnish 
defendant sufficient work upon its automo- 
biles and auto tmdks and storage for auto- 
mobiles and trucks to pay for said piano 
without obligation or expenditure of any 
cash or money payment thereon whatsoever, 
and to furnish said labor, employment, and 
storage in sufficient quantity to meet the 
monthly payments and installments of the 
note and mortgage read in evidence, that 
plaintiff ceased to furnish defendant with 
work and employment as aforesaid, and fill- 
ed to furnish storage of said cars and trucks 
long before the Institution of tUs suit, and 
that defendant has been and is now ready, 
willing, and able to carry out and perform 
his part of said oral agreement. The court 
refused to admit this evidence on the objec- 
tion that such testimony wonld 'contradict, 
vary, and enlarge the terms of the written 
contract contained In the note and mortgage. 
No other defense was offered, and, as the 
facts vrarranting a finding for plaintlfl were 
admitted, and no Isstie was left for the Jury 
to decide, the court directed a verdict for 
plaintUI. The court's ruling on this evidence 
Is therefore the only question before this 
court 

[1] The note and mortgage constitute a 
single written instrument, and, so far as 
necessary to be noted her^, reads as fol- 
lows * 
"$810.00. July 21, 1913. 

"We are not responslWe for any written or 
verbal contract or promise other than written 
or printed on the face of this agreement. For 
value received, the undersigned, .residing in 
JopUn, 1806 Kentucky, county of Jasper, and 
state of liDssouri, promise to pay to the order 
of Bnrke Music Company eight hundred doUarg 
at their office, as follows: Thirty-five dollars 
in trade, and $20 September 1, 1013, and $20 
the 1st of each succeeding month till fully paid, 
with interest on each payment at the rate of 
6 per cent, per annum from the date hereof un- 
til fully paid with exchange and a reasoAable 
attorney's fee if this note is placed in the hands 
6f ah attorney for collection. To secure the 
paymedt of the Sum of money In the foregding 



note, contracted to be paid, together with inter- 
est, exchange, and attomey^s fees, as herein pro- 
vided, L the undersiimd, hereby mortgage to 
the said Burke Music Company one Packard 
player piano," etc 

We hold that the trial court was correct 
In its ruling, and that the evidence offered 
would, If admitted, be violative of the rule 
that a written agreement between parties 
cannot be contradicted, enlarged, or varied 
by parol evidence, since all prior and con- 
temporaneous verbal agreements are merged 
in the written agreement. The general rule 
is well stated in Dexter v. MacDonald, 196 
Mo. 373, 391, 86 S. W. 859. 364, thus: 

"It is fundamental that, when an undertak- 
ing by parties is reduced to wilting. In the ab- 
sence of fraud, accident, or mistake, it is con- 
clusively presumed that the whole engagement 
and manner and extent of th^r undertaking 
were reduced to writing. This was »o ruled 
by this court in Plumb v. Cooper, 121 Ma 668 
[26 S. W. 678]." 

There are some well-recognized exceptions 
to this rule, and it is often a nice and difli- 
cult question to determine when parol evi- 
dence is admissible when the parties have 
reduced the agreement to writing. One of 
the exertions is, and on this defendant re- 
lies, that the general rule is not violated 
by allowing parol evidence to be given of a 
distinct contemporaneous agreement not re- 
duced to writing when same Is not in con- 
flict with the provisions of the written agree- 
ment Jones on Evidence, S 495; Boe v. 
Bank of VersaiUes, 167 Mo. 406, 67 S. W. 
303. It is also said that the exception to 
the general rule which admits evidence of 
a distinct collateral agreement is especially 
applicable when such collateral agreement 
relates to the consideration of the contract 
or the inducement for entering into It 17 
Cyc. 717. 

Whatever may be the rule elsewhere, it 
is the law of this state that where matters 
pertaining to tbe conslderatlan of a contract 
are contractual, then such matters, are no 
more subject to be contradicted or varied by 
parol evidence than any other 'material part 
of the contract. The question of the admis- 
sibility of parol erldenoe in such cases can 
generally be settled br determining whether 
the part or terms of the contract relating 
to the consideration are ooDttactnal In- their 
nature or Inserted merely by way of recital 
of past or existing facts. Thus la Jackson 
V. Railroad, tH Mo. App. 687, 6M, the court 
said: 

"So that it must follow that, if parties express 
their contracts as to the consideration in terms 
which show that it is a contract, then, if com- 
plete upon its face, it can no more be altered or 
varied than any other contract Whenever the 
statement of the consideration leaves tiie field 
of mere recital and enters into that ot contract, 
as shown by the intention of the parties to h^ 
gathered from the instrument it Is no longer 
open to contradiction.'* 

In Pile V. Bright 166 Mo. App. 801, 1ST 
S. W. 1017, the law is stated thus : 

"There has beeti some variation between the 
early and later casp« in this state upon 
question of explaining, trr ebntradietBig 



t>gle 



M«0 



JOHHSQN ▼. UAXKR 



143 



pirol. an ezpnued consideration of a written 
contract, but the law is now well settled tbat, 
^en the redtal of a consideration in a written 
(ontiaet cu be fairly regarded as a mere re- 
cital, or a atatemant of the ree^pt of money, 
then sach recital may be explained by parol, 
and the actual consideration for the contract 
shown, even thongh to do so may apparently 
omtradiet the recital in the contract. In this 
dass of caaea the recital as to the conaideration 
is regarded in the some Ugbt aa a receipt for 
money and may be explained, or even contra- 
dicted by parol ; bnt, if the statement in a 
written contract in relation to the consideration 
shova upon its foce that the aspresaed consid- 
eration la a part of the terms of the contract 
itself, then that part of the writing stands as 
any other part, and it cannot be contradicted, 
added to, nor aubtracted from by paroL" 

This coart considered this same gnestion In 
Stringer r. Manufacturing Co., 177 Mo. App. 
231, 182 S. W. 64S, and there held that, when 
a mortgage distinctly contracts when and 
how mncta money Is to be paid by the mort- 
gagor, tbls matter Is contractual, and cannot 
te contradicted or varied by parol evidence 
of a contemporaneous agreement. In ac- 
cordance irlth this same principle tbe court, 
In the caBe of Trustees v. Hoffman, 95 Mo. 
App. 488, 69 S. W. 474, held that (syUabns) : 

"An instrument of writing promising abso- 
lately to pay a certain sum of money cannot be 
defeated by oral eridence to the effect that the 
amotmt promised was to be paid only on condi- 
tion that an endowment fund of $50,000 was 
raised before a certain date." 

See, also, Davis v. Ganm, 63 Mo.- App. 430. 

Turning to tbe agreement in question here, 
we find that the very gist of the contract is 
the amount, time, and terms of payment for 
this idano. There is a distinct specification 
of the amount to be paid in trade, and the 
balance is stipulated to be paid absolutely In 
fixed amounts and at fixed Intervals. To be 
allowed to prove that tbe mortgagor was not, 
in fact, obligated to pay any amount at any 
time, bnt only to do certain work for plain- 
tiff, if plaintiff furnished such work for 
him to do, and that the plaintiff obligated 
itself to furnish him sufficient labor and 
employment to meet the stipulated payments, 
la to prove a radically different contract 
than that made in the writing. That these 
matters are contractual and are not to be 
contradicted and varied by parol evidence 
seems too plain for argument. 

[2] It Is further suggested that the Jury 
should have been required to find that the 
defendant was in possession of this property 
and wrongfully detained the same. The ver- 
dict which the jury was directed to find is, 
la substance, that the Jury find the Issues 
in favor of the plaintiff, and that plaintiff 
was, at tbe commencement of this action, 
entitled to tbe possession of the player piano. 
Barnes ▼. Flessner, 137 Mo. App. 571, 119 S. 
W. 457. and Grant v. Stubblefield, 1($8 Mo. 
App. 566, 120 S. W. 647, are dted. The de- 
fendant, however, did not raise any such 
tene. The defendant was concededly in pos- 
session of this piano, and his detention there- 



of was wrongful as a matter of law when it 
was shown that he had defaulted In tbe pay- 
ments secured by mMtgage and refused on 
plaintUTs demand to surrender the piano 
for the purpose of foreclosing the mortgage. 
The conrt might well have directed tbe Jury 
to Include these findings in the verdict, bnt 
mere errors In the form of a directed ver-' 
diet are not material. 

The right of this defendant to pay off the 
amount due under this mortgage and retain 
the property in controversy was not and is 
not controverted. The plaintiff gave bond 
and took the property Into Its possession. 
We are not advised as to what further steps, 
if any, have been taken in foreclosing the 
mortgage. The possession of the piano is by 
tbe Judgment in question awarded to the 
plalntifl only for the purpose of permitting 
it to foreclose the mortgage in accordance 
with the terms thereof, and defendant's right 
to redeem the same or to receive the sntplns, 
if any, after a sale under tbe provisions of 
tbe mortgage, la not questioned, and bis 
rights in thIiB respect are not before to for 
adjudication. 

The judgment being for tbe right party, 
tbe case will be affirmed. 

ROBERTSON, P. J., and FARRINOTON, 
3., concur. 



JOHNSON et aL T. MAIBE et aL (No. 1798.) 

(Springfield Court of Appeals. Missouri. June 
17, 1916.) 

1. MOBTOAOBS «=9280(S)— Transteb ov Pbof- 

XBTT— AssuuPnoN or Ircuxbrakob. 
Where plaintiffs, who held a note secured 
by a deed of trust on land which was after- 
wards conveyed to defendant, were not misled 
because the deed contained a fraudulent cove- 
nant obligating defendant to pay off the deed 
of trust, such oovenant is not, being without 
consideration, binding on defendant, though he 
retained the deed after learning of its fraudu- 
lent insertion and subsequently conveyed the 
land. 

[Ed. Note.— For other caaea, ace Mortgages, 
Cent. Die H 742, 744: Dec. Dig. «s»280(8).j 

2. MoBTOAOES «s>280(S)— Tbanbfkb or Psop- 
EKTT— AssmcFTioii or IiromiBBAirax — Rb- 

SOISSION. 

Where defendant's grantor was In possession 
of the property given in exchange for the land 
and was then contending that defendant had as- 
sumed the covenant, the holder of the incum- 
brance cannot predicate liabilitj; on the ground 
that defendant should have rescinded. 

lEd. Note.— For other cases, see Mortgages, 
Ck»t. Dig. IS 742, 744; Dec. Dig. «=>280(3).] 

3. APPKiX AITD EbSob «=»1064(1)— Rbvibw— 
Habuixss Ebbob., 

In an action based on a covenant included 
in a deed obligating a grantee to' discharge an 
incumbrance where the deed was not recorded 
and waa not produced at trial, an instruction 
that, if the covenant was inserted after delivery, 
the grantee was not liable, is harmless, though 
erroneous, where the grantee did not see the 
deed for some time after delivery to a codefend- 



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144 



187 SOUTHWESTERN ttEPORTBa 



m* 



-.1 

. 'i 



ant, and the sole question wa« whether the cove- 
nant was supported by consideration. 

[Ed. Note. — For otlier cases, see Attpeal anil 
Error, Cent Dig. { 4219; Dec J)ig. «= 
1064(1); Trial, Cent Dig. {{ 475, 525.] 

Appeal from Clrcnlt Court, Kielpa Coun- 
ty; L. B. Wtoodside, Jndge. 

Action by W. D. P. Jphnson and anotber 
against Albert A. Maler and another. From 
a Judgment for the flrst-named defendant, 
plaintiffs appeaL Affirmed. 

Watson & Ldvlngston, of Rolla, lor appel- 
lants. Lorts & Breuer, of Bolla, for respond- 
ents. 

ROBERTSON, P. J. Plaintiffs sued re- 
spondents to recover the amount due on n 
11,000 note which it Is alleged they assumed 
and agreed to pay as part of the considera- 
tion for some real estate conTe>-ed to tbem 
by one Wiggins. The note was secured by a 
second deed of trust on the land, the first 
deed of trust securing a note for $1,500. Aa 
the result of a Jury trial, a Judgment was 
obtained In favor of defendant Uaier, and 
plaintiffs have appealed. Judgment by de- 
fault was entered against defendant Adums, 
hence be is only a nominal respondent, snd, 
where reference is made herein to defeud- 
ant, Maler is meant. 

The deed to defendants from Wiggins con- 
tained a clause to the effect that the grantees 
assumed and agreed to pay the total amount 
secured by both deeds of trust The con- 
troversy was over whether or not the de- 
fendants assuming these debts constituted a 
part of the consideration tot the land con- 
veyed to them by Wiggins, and whether the 
clause was placed in the deed with the 
knowledge and consent of defendinit Staler, 
or whether, if It was not, he thereafter learn- 
ed that It was In there, and so accepted the 
deed and recognized this provlsloa as to 
bind him. 

Involved in this case Is solely the question 
of the sufficiency of the instructions, as tliore 
was ample testimony tending to prove thi? 
facts therein hypothetlcall^ submitted. In 
behalf of plaintiffs, the instructions told the 
Jury (1) that, even if the clause was put in 
the deed by mlstalie, the defendants were 
liable If they retained the deed and conveyed 
the land after learning the clause was tliere- 
In, unless inserted fraudulently, and fraud 
was defined (2), at the request of plaintiffs, 
to mean: 

"That there was caused to be inserted in said 
deed the clause wherein grantees issnmpd nnci 
agreed to pay the note in questipc wlir<n tlie 
same was not agreed to by the defGnilatits, with 
intent to wrong the said defendants and to 
cause them to accept the said deed with con(}l- 
tions therein to which there had been no agree- 
ment by them." 

On the part of the defendant, instructions 
were given telling the Jury: (1) That unles.s 
the clause was In tlie deed when esetnted 
the defendant was not liable, even If he 
bought the land subject to ' tlut- di.-eds of 



trust; (2) that If the clause wo tuMrKJtt 
the deed after its delivery to defendant ititt 
out his CDUsent he was not bovnJ tiuviy, 
(3) that even If the clause waslnserti^dkfoie 
the deed was delivered, yet If It wai irsat 
uleutly inserted, and defendant did not a^nt 
to assume and pay plalntifEs' debt. tbtKf 
diet should be for defendant; aad (4) Uut 
if there was not an agreement betwwo Wlj- 
gins and defendant that he should ib.5ii3a 
and pay tho plaintiffs' note the 
should be for defendant 

[1) Plnlntiffd first complain thut tlielr 
structlon 1 was improperly modiOctl ^j 
court Inserting the clause conceroljii 
alleged fraud. The argument la 
plaintiffs is that, If the defendante coik' 
the land after they discovered the cl;iu^ 
therein, such conduct amounted to a, rat 
tlon thereof, Irrespective of how It got ihe». 
There might be some merit in this (".miai-' 
tlon if tlie plaintiffs were thereby misW ui 
their injury; but. In the abseuce "f Hf 
such question, the basis of defendant's U^ 
bUlty In this case is that they for a viii*| 
able consldcrRtlon assumed and ag[t«l U 
pay plaintiffs' debt Ealthel v. Smith, S 
Mo. 25S, and Davis 7. Dunn, 121 Mo. Ajft 
290. 493. 97 3. W. 22ft When it is shW 
that there was fraud, as defined, or em 
mistake, In the absence of some facts to W 
vote equitable principles in behalf of pl*i* 
tiffs, it was thereby shown that ttip ^^I 
fendants neither contracted to pay i>o: Tt- 
ceivetl any consideration for the oll£?4 
agreement. 

[2] It appears that defendants reconTeji< 
the hind after they learned the clause must* 
the deed, but then Wiggins was in tbe pW 
session of property defendant traded hhu ll 
the time he made the deed to hlni, and, ssK 
was then contending that defetidants taJ 
assumed the debt, he would have redAti 
and did object to making a change lo UM 
deed. T!ie plaintiffs are In no positii)0 8 
Invoke the doctrine of rescission which Isip 
pllcaliie tf) one seeking relief from fraud li 
mistake in equity. As this case stands, tSf 
question was as to whether or not ilie dt 
fciKlaiits aa a matter of fact agreed to pi) 
this debt. The Jury on lustructloua txnt 
able to plaintiffs found they did not 

[J] ft is said defendant's InstnictlMB, « 
and 3 should not have been given, beeani 
there was no testimony on which to W 
them. We apprehend the objection Is rttV, 
filmed at Instruction 2, wherein it refew • 
a change In tJie deed after delivery. "HI 
deed was not produced at tlie trial, It l* 
not been recorded, and Maler did not sw I 
for some time after its execution and dflh 
ery to his codefondaiit, Adams. To conced 
the most for tills objection, U may proprrt 
be said that there Is no error tliercln Josrlf] 
luK a reversal. 

There are cited a number of cases In tx 
linir lu' iihur.i ilT (anioi:-: [Iil';!i i'rvM" ■ 
1^2 Mo. Ajjj^^j^j^^m 6^\V, ^^^ 



Mo.) 



BUBUS v. polar wave iciE ft PUEI, CO. 



146 



Conway, 148 Mo. 291, 49 ?. W. 1028, 71 Am. 
St. Rep. 602 ; and Nelson ▼. Br<i>trn, 140 Mo. 
5S0, 41 S. W. 900, 62 Am. St. Rep. 7B0) to 
sostaln tbe assertion that tbb mere accept- 
ance of the deed with the clause assnmlng 
and agreeing to pay tbe note Is Sufficient to 
bind the grantee; Irat in those dasM there 
was no question as to Vhb consideration or 
the agreement, the very- fotmdatlon of the 
liability, and the expressions therein contain- 
ed mnst be considered in tbe light of the Is- 
snes Involved and under retleW. 
The Judgment is affirmed. 

FARRINGTON and STUHaiS, JJ., con- 
car. 



BUENS V. POIiAR WAVE lOB ft PUBL CO. 
(No. 14365.) 

(St Looi* Oonrt of Appeals. MltsonrL June 
«, 1916.) 

L Wrr wEsea a *=3l44(l) — Disquauticatiok 

— Statutk. 

Under Rev. St. 1900, f 6364, touching dis- 
gaalificatioa of witnessea, in an action against 
a corporation for injuries caused by the driver 
of its wagon, who died before suit, plaintiff, on 
proper objection, should not have been allowed 
to testify to the act* of the driver which it was 
claimed caused the accident. 

[Ed. Note.— For other cases, lee Witnesses, 
Cent Dig. {} 625, 626, 629, 632; Dec. Dig. <g=» 
144(1).] 

2. WlTTfZaSKS «=>180 — COMPEtBNCT — OB- 

Jicnons. 

In an action against a corporation for inju- 
ries caused by the driver of its wagon, det:eased 
before suit, general objection to plaintiff's com- 
petency as a witness was properly overruled, 
tbongh on proper objection he was incompetent 
to testify to the acta of the driver which caus- 
td the accident. 

[Kd. Note. — For other cases, see Witnesses, 
Cent Dig. §{ 726-730; Dec. Dig. <S=>180.] 

3. Trial €=228(2) — Insteuction — Refeb- 

EKCE TO OTHEB CRABQES. 

In an action for injuries in a collision be- 
tneen wagons, an. instructioa which specifically 
referred to other instructipns in tbe case for 
facts necessary to a recovery wa.s not ierroneous 
as directing a vcfrdict and not covering all the 
facts. 

[Ed. Note.— For other cases, see OMal, OaU. 
Dig. i 5U; Dec. Dig. «=>228(2).] 

1 APPEAI, AND BttBOB «9l064(2)— EUBXuise 
ElBOBh-lNSTBDOnON . 

In an action for injuries received in coUi- 
rion between wagons, where the fact of the col- 
Unon was not disputed or questioned, the defect 
in an instruction th*t it assuaaed the eollisidn 
was not important. 

peal and 

6. Mdnicipai, CospobatkWs <B=»70e(4)-^oi.- 
usiOR Bbtwkbn WA0<yH8— AcnoiT — Bvt- 

DENCB— OBDIITANOH9. 

In an action for iajuries received in a ool- 
lifflon between plairitirs and defendant's wag- 
ons, sections 2 and 5 of Ordinance 25104, which 
are parts of sections 1827, 1880, Rev. Code St 
Louis 1912, requiring a teamster to drive, at the 
right !dde of a street, were admissible in evi- 
dence, not being incompetent, irrelevant, and 
immaterial, nor not tending to prove anything, 



tbe facts is evidence showing a violation by de- 
fendant's employ^. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. { 1518; Dec. Dig. <&=> 
700(4).] 

6. Tblal «=3l92 — iRSTBOonon — AssuMiNa 

EUlSTENCX OF ObJ>INANCB. 

In an action (or injuries in collision be- 
tween plaintiff's and defendant's wagons, where, 
objections made to sectioua of an ordinance of 
the cit^', :when offered, in no uuuiner challenged 
the existence of the particular sections, an In- 
struction, not setting out such sections or re- 
quiring the jury to find they were in force, mere- 
ly stating tnelr effect, was proper. 

[Ed. Note.— For other cakes, see Trial, Cent. 
Dig. 55 432-434; Dec. Dig. <S=»192.] 

7. Mdnioipai. Oobfobationb «b>706(1) — 
CoixisioN Bbtwebn Wagons — "Obdinabt 

CaRB"— "NBal.IGENCI." 

The "ordinary care" which the driver of a 
wagon must use to turn a comer as near, the 
right-hand curb as. possible, as required- by city 
ordinance, is such care as a reasonably prudent 
man would have used under the circumstances, 
while negligence is failure, when it was possi- 
ble by the exercise of ordinary care, to turn 
nearer the righb-band curb than the center of the 
street. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. § 1515 ; Dec. Dig. 4=» 
708(1). 

For other definitiohM see Words and Phrases, 
First and Second Series, Negligence; Ordinary 
Care.] 

8. MuNiciFAi, CoBPOKAXtoira «=»705(4)— Col- 
lision Betwekn; Waqons — Liability. 

Where plaintiff's wagon, having a right to 
be standing on the far side of the street, and no 
right to be on any other part, was struck by 
defendant's consequently upon defendant's serv- 
ant's violation of sections ot a city ordinance re- 
quiring wagons, in turning corners, to keep as 
near as possible to the right-hand curb, defend- 
ant was liable, whether its driver knew that 
plaintiff's wagon was standing in the street or 
not. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. §§ 1516, 1616; Dec. 
Dig. «=»706(4).] ' 

9. Trial «=»252(l)—tNSTBUCTi0NB—ABSTKACT- 

RKBB. 

Jnstructiona must be predicated on tbe evi- 
dence. , , , 

[Ed. Nota— For otter cases, see Trial, Cent. 
Dig. 5§ 596, 612; Dec. Dig. <S±>252a).] 

10. Municipal Cobpoeations i3=»706(8) — 
Collision BEtwEfeN 'waqons- Action— In- 
erniTJcrioif. 

In an aotlcii l&t injuries in a collision be^ 
twesn plaintiff's and deijendant's wagons^ where 
there waa evidence that defendant's wagon cajne 
along and strtick plaintiff's with such impact 
And speed that IthTHted ifagainst a lamp post 
40 ttbt norths wdiere tbe collision oocurred, an 
instructi9n was ju<tified that if tbe jury believ- 
ed that after defendant's wagon stru6k plain- 
tiff's, defendant's employ^ did not use ordinary 
care t6 etiip or check def^dn&t's wavon, so that 
plaintiff's wiagqn was dragged after the collision 
and plaintiff was thrown pv^( of the wo^on, de- 
fendant was. liat>le, etc. ! ■ 

[Ed. Note^— For other cbses, see Municipal 
Corpomtlons, Cent. Dig. | 1618; Dec. Dig. «=» 
706(8).] 

11. DAUA6E8 €=!»208<8) — Evidence ®=»570 — 
Expxbt Testimony — Advibobt Cuaractbb. 

In an action for injuries received in colli- 
sion between plaintiff's and defeudant's wagons, 
though the sMr^rcon Who testified refused to statu 



C=>For other esaat.sc(< same topieand KST-NOMBBKin all KeyhMamkarad Dtgasta and Ind«KSt 
187 S.W.— 10 



^.yitized'tiy 



Google 



146 



187 SOUTH[WBSTB{tN KBPOBTBB 



(Bfa 



In ao many words that injoriea to plaintiFs ab-. 
domen weie permanent, where it was in evidence 
that at the time of trial, 9 months after the ac- 
cident, plaintiff was atill Buffering in his abdo- 
men, the submission to the jury of the question 
whether plaintiff's injuries were permanent was 
proper, rince the opinions of witnesses as ex- 
perts are merely advisory and not binding, and 
the jary can accord them such weight as they 
believe from all the facts and circumstances in 
evidence tiiey are entitled to receive. 

[Ea. Note.— For other cases, see Damages, 
Cent Dig. §| 533, 534: Dec. Dig. «=»20S(3); 
EJvidence, Cent Dig. § 2305; Dec Dig. <&=>570.] 

12. Dakaoks <3=s>132(1)— Pxbsonai. Ivjvkx— 

EXCB68IVE VEBDIOT. 

In an action for personal injuries in colli- 
sion between defendant's and plaintiffs wagons, 
where plaintiff, a teamster owning two teams, 
received serious injuries, among othenu to his 
abdomen, which prevented him from doing very 
hard work with safety, and he was still suffer- 
ing from them at the time of trial, 9 mouths aft- 
er the aoddent, verdict for 97,600 was not ezcea- 
sive. 

[Ed. Note.— For other cases, see Damages, 
Cent. Dig. S 372; Dec. Dig. <8=9l32(l).] 

Appeal from St Louis Circuit Court; Bu- 
gene McQuUlln, Judge. 

"Not to be officially published." 

Action by Samuel C. Burns against the 
Polar Wave Ice & Fuel Company. From a 
Judgment for plaintiff, defendant appeals. 
Judgment affirmed. 

Jones, Hocker, Sulliyan & Angett and Vin- 
cent L. Bolsanbln, all of St. Louis, for appel- 
lant Brownrigg & Mason, of St Louis, for 
resp<mdent 

RBTNOLDS, P. 3. This is an action by 
plaintiff, respondent here, against the de- 
fendant to recover damages alleged to have 
been sustained by plaintiff to his person and 
property, plaintiff at the time driving a team 
attached to a wagon in which he was seat- 
ed, by being run into by a wagon of de- 
fendant in charge of one of Its employes. 
It being charged In the petition that the act 
was a negligent act on the part of defendant 
through Its employ^. The accident is charg- 
ed to have occurred February 12th, 1913, in 
the dty of St Louis. Violation of a city or- 
dinance — sections 2 and 6 of ordinance No. 
25104, Is charged, those sections, 1327 and 
1330, providing that a vehicle, except when 
passing a vehicle ahead, shall keep as near the 
right-hand curb as possible, and that in turn- 
ing to the right into another street a vehicle 
shall turn the comer as near the right-hand 
curb as possible. Judgment is detnanded for 
115,000. 

When the cause was called for trial before 
the court and a jury, defendant objected to 
the introduction of any evidence because, as 
it was alleged, the petition did not state facts 
sufficient to constitute a cause of action. 
This objection was overruled. 

Plaintiff, as the first witness on tala own be- 
half, having been sworn and having given his 
name, counsel for defendant objected to him 
testifying in the cause, for the reason that 



defendant Is a ooiporation and can <Hily act 
by and through its' agents and servaifts, and 
defendant asked to be then allowed to offer 
evidence to prove that one Johnson, who was 
the driver of the -wagon belonging to de- 
fendant at the time of the accident was now 
dead ; that this being so, then under section 
6354, Revised Statutes 1900, plaintiff is an 
incompetent witness. The court allowed de- 
fendant to Introduce Its evidence as request- 
ed and that being done, It was admitted thac 
Johnson was the employe of the defendant 
"alleged to have been in charge of the wagon 
and who ran into plaintiff's wagon," and 
that he, Johnson, has since died. Thereupon 
the court overruled the objection of defend- 
ant's counsel, counsel excepting. 

Plaintiff was thereupon permitted to. testi- 
fy and did testify as to the drcvunstances 
connected with the accident; that he was a 
married man, with two obildren; was en- 
gaged in teaming, owning two teams, and 
drove one of his teams oa the day of the ac- 
cident; that while driving south on Comp- 
ton avenue, and along the west side of that 
street, he saw a Polar Wave three-horse 
team coming down that street and that the 
driver was whipping with one hand, pulling 
his lines with the other, and "cussing" ; that 
the street was 40 feet wide and that he 
(plaintiff) was a hundred feet from this wag- 
on when he first noticed it; had known the 
driver of that wagon, Johnson, for three or 
four years and that he (Johnson) was then 
driving a wagon belonging to the defendant 
company; that he (plaintiff) had stopped In 
his wagon against the west curb of the 
street when the front end of the defendant's 
wagon, driven by Johnson, struck the front 
end of the body of his (plaintUTs) wagon 
and the bodies of the two wagons rubbed for 
about 14 or 16 inches; that he (plaintiff) 
was thrown into the alx, knocked uncon- 
sdoHS, and when he regained consciousness 
he was 10 or 20 feet from where he had been 
in his wagon, the wagon some SO or 40 feet 
north from where It had been and a lamp 
post broken by his (plalntltrs) wagon having 
been shoved against it He further testified 
to the damage to his wagon and to his per- 
son, as to which latter, it Is sufficient to say 
that there was evidence tending to show that 
It was of a serious character, so serious a.<i 
to prevent plaintiff doing very hard work, 
his abdomen being Injured, and that he was 
still suffering from these Injuries; whether 
permanent or not the physicians for plain- 
tiff declined to say. Plaintiff also introduc- 
ed testimony as to his expenditures, value 
of his time lost and of the extent of his suf- 
fering. 

Other witnesses to the accident gave testi- 
mony practically corroborating plalntUTa 
version of the happening of the accident 

There was a verdict for plaintiff in the 
sum of 97500; Judgment followed, from 
which, filing its motion for a new 



or other esMi «m lam* topic and KET-NDUBBB In all Ker-Numberad Dlgnu and Indezi 



tea O 



Mo.) 



BURNS V. POLAR WAVB ICB ft TVHh OO. 



U7 



well as In arrest, defendant has duly ap- 
pealed. 

The first assignment of error made by 
counsel for appellant Is to the action of the 
court In allowing plaintifT, over the objection 
of defendant, to testify, it being claimed that 
under section eSM, Revised Statutes 1909, 
be was an incompetent witness. 

[1] Hie decision of oar court in Leavea t. 
Soathem Ry. Co., ITl Mo. App. 24, 108 8. 
W. 500, and that of the Supreme Court In 
the same case, not yet offlclally reported but 
to be found in 181 B. W. 7, are cited in sup- 
port of this contention. In those decisions 
It is held that the testimony of plaintiff as 
to the accident should not have been admit- 
ted. It having been admitted that Johnson 
was the driver of the team at the time of the 
acddent, was an eiiq;>loy6 of defendant in 
charge of the team at that time and on that 
occasion, and that he is dead, plaintiff, mi 
proper objection, should not have been al- 
lowed to testify to the acts of Johnson which 
it is claimed caused the accident and render- 
ed defendant liable. So it was held in the 
Learea Case, the objection there made being 
to plaintiff testifying to what took place be- 
tween himself and the deceased employ^ of 
defendant But in the case at bar the ob- 
jection was not limited to that testimony, 
but challenged the competency of plaintiff to 
testify at all; that is, was founded on the 
claim that the agent of defendant, who rep- 
resented it in the matter or stood for de- 
fendant, being dead, plaintiff was an Incom- 
petent witness in the case. 

It is held by our Supreme Court in First 
-VaUonal Bank v. Payne, 111 Mo. 291, loa dt. 
298, 20 S. "mi 41, 33 Am. St Rep. 520, Mann 
V. BaUour. 187 Ma 290, loc. cit 304, 86 S. 
W. 103, Weiermueller v. Scullln, 203 Mo. 
466, loc. cit 473, 101 S. W. 1088, and Eaton 
T. Gates et aL, not yet officially reported, 
but see 176 S. W. 950, loc. cit 953, and in 
Kllle V. Gooch et al., not yet officially re- 
ported, but see 184 S. W. 1158, and by our 
court in Diggs V. Henson, 181 Mo. App. 34, 
loc dt 46, 163 S. W. 585, that a party to 
tbe action is only disqualified under section 
6334 from testifying to transactions which 
took place between himself and tbe deceased 
agent and representative of defendant in the 
transaction, but is not disquallfled generally 
as a witness from testifying in the case. 
Thus plaintiff here was a competent witness 
to testify as to his injuries and the dam- 
age to himself and his outfit and his ex- 
penditures, but he cannot testify as to the 
acts of the driver of defendant's wagon. 

[t] It foUows that the learned trial court 
committed no error In overruling the ob- 
jection here Interposed, that being a general 
objection to plaintiff testifying at all in the 
case. 

It is not out of place to say that outside 
of the testimony by plaintiff there was ample 
testimony of the fact of the collision and of 
tlie acts of tbfr driver of defendasfB team. 



[1] The second assignment Of error if that 
respondent's instruction No. 1 is enoneona 
in that it Erects a verdict and does not cov- 
er all the facts In the case. We do not think 
this instruction is subject to this criticism. 
Specifically, and In the body of the Instruo- 
tioh, It refers to other instructions in tbe 
case for facts necessary to a recovery. 

The third assignment is levelled at tbe 
fourth Instruction given at the instance of 
plaintiff. It tells the Jury that if they be- 
lieve fnxn the evidence that defendant's 
team and wagon. Just prior to the collision, 
was turning to the right into Compton ave- 
nue and out of Adams street, then it was the 
duty (^defendant's servant in charge of tbe 
wagon turning into Compton avenue as 
aforesaid, to ezerdse such care as a reason- 
ably prudent man would have used under the 
circumstances to turn the corner as near the 
right-hand curb as it was possible so to turn 
by the exercise of ordinary care ; and If tbe 
Jury further believe from the evidence that 
defendant's servant turning into Compton 
avenue from Adams street, did not turn the 
.corner as near the right-hand curb as, by 
the exercise of ordinary care. It was XK>sslbte, 
as aforesaid but turned past the center of 
the street and that it was possible for the 
defendant's servant by the exercise of ordi- 
nary care, to turn the comer nearer the 
right-hand curb than the center of the 
street ; and If the Jury further believe from 
the evidence that plaintiffs Injuries and 
damages as elsewhere sx>ecifled In these in- 
structions were the direct result of the fail- 
ure of defendant's servant, as aforesaid, to 
keep as near the right-band curb as possi- 
ble, as aforesaid, their verdict should be tor 
plaintiff. 

[4] It is urged against this instruction that 
It assumes the collision. That Is true, but 
the fact of the collision was not only undis- 
puted but in fact was admitted, as we have 
noted when setting out the admissions madp 
under the objection to plaintiff testifying. 
The defendant's own witnesses, on direct ex- 
amination, testified to seeing the collision. 
In fact it was not disputed, but as before 
said, admitted. Where, as here, the fact of 
the collision !s not questioned or disputed, 
this assumed defect in the instruction is un- 
important. Hall T. Manufacturers Coal & 
Coke Co., 260 Mo. 861, loc. cit 370, 168 S. 
W. 927. 

[S, 6] It Is farther urged that tills Instrnc- 
tlon falls to require the Jury to find under 
the evidence that there was any ordinance In 
St. Iiouls requiring a teamster to drive as 
near as possible to the right-hand side of 
the street That was not necessary. Sec- 
tions 2 and 5 of Ordinance 26104, which are 
parts of 1327 and 1330 of the Revised Code 
of St Louis of 1912, relied upon and which 
we have set out in the statement were of- 
fered in evidenoa The only objections to- 
them Were that tjiey were incompetent, Ir- 
lelevi^Bit and Immaterial and did not tend to 



..gfeed'by Google ^ 

k " 



148 



187 SOUTHWESTERN BSPOKTBB 



(Uft 



proTe anyUiing in the case. Tills was over- 
ruled, defendant excepting. Ncioe of these 
objections urged against tbcse aeetiotis of tliu 
ordinance are tenable. They were compe- 
tent, relevant and material nml the facts Id 
evidence showed a violation or non-ol>serv- 
ance of the sections on the part of defend- 
ant's employe, and that waa correctly cover- 
ed by the Instruction. It is true that tliese 
sections of the ordinance were not set out 
in hsec verba In the instrui-'tlon, but their 
effect was stated and the Instructloa Is un- 
doubtedly founded on them. It was uniiecea- 
sary to spedflcaUy refer the Jury to these 
sections of the ordinance or to require the 
Jury to find that they were in force, for the 
objections made to them, when oOTered, In 
no manner challenged the existence of these 
sections of the ordinance. In point of tact 
the existence of the ordinaace was not only 
uncontroverted but practically admittoiJ. In 
Ohio V. Metropolitan Street Ky. Co„ 125 Mo. 
App. 710, loc. dt. 717, 103 S. W. 1-42, 144, 
It appeared that by Instructions given for 
plaintiff the court submitted to the Jury the 
question whether a certain ordinance of Kati- 
sas City was in force at the time of plaiu-' 
tlfTs injury. The Kansas City Court of Ap- 
peals held as to this: 

"Technically speaking, tlae criticiani is well 
founded. Whether the ordinance was in force 
as such was a question alone for the court, it 
being a question of law." 

[7] It is finally urged against this instruc- 
tion that It omits an essential element of the 
ease, that is, that the driver knew or by the 
exercise of ordinary care might have known 
that respondent's wagon wag standing at the 
point where the collision occurred. It Is to 
be noted. In connection with this Instructlor.. 
that the court properly deflued the terms 
"ordinary care" and "negligence," as used in 
the instructiona 

[J] As said by the Kansas City Court of 
Appeals In Ghlo v. Metropolitan Street Ry. 
Co., supra, so it may be said of this otijbc- 
tion to tills instruction — that It was purely 
technical. The undisputed evidence in tlie 
case tended to show — in fact did ahow^that 
defendant's employe had grossly violated the 
ordinance by driving so far away frum the 
right-hand curb that he struck plaintiff's wag- 
on, that wagon being near tbt? wf^st curb of a 
40-foot street ; so that the strilciug of plttintiS'a 
wagon was directly due to the vlolatlou of 
these sections Oif the ordinance, and defend- 
ant was liable, whether its driver knew that 
plaintiff's wagon was there or not, even 
though there Iiad been a question of knowl- 
edge. Plaintiff had a right to be there and 
had no right to be on any other part of the 
street, and the defendant's euiploy^, going in 
that direction, luid no right to drive on the 
far curb, so that even If plalutifiC had cocue 
there suddenly, so that be could not be seen 
or was not seen, defendant's negligence In the 
violation of the ordinance and the resulting 
Injury to plaintiff as clearly made out plaln- 



tUTs cause of action as if def^daat's driT«i 
had known of the presence of pJatalilt, Far- 
tliermore, the evidence, by the twtlmonj d 
defendant's own witnesses, GhoweA Uiai it 
feiidant's employ^ did know of the presam 
of plaintiff's wagon, calling oat a« ti« laiK 
along the etreet and niade the turn, "Gx 
over! Get overl" the horses' heads ut Lh«t«« 
teams being then about 20 feet apart Hm^ 
when defendant's employ^ saw piaiotiC* 
wagon In the position it occupied la tlierjoi 
the wagons must have been 40 or SD f«rt 
apart. We do not tbliik there is aaytUuj to 
this Instruction so far as tMs poiut it m- 
cerned to tho prejudice of defendant 

[», lOJ The third instrnctloD given at tJi 
Instance of plaiatlETia attacked oatiegnniBj 
that the dragging of plaintiff's wagon bid \ 
nothing to do with plaintUTa Injary. sad tinl 
any negligence In bo dragging the w»i^ 
could not liave directly contrittuted to plim- 
tiff's Injury. It ta said in support of thii tk 
signment of error that instructions miist 1» 
predicated on the evidence. That ts tn* 
But we think that the evidence In this «w 
Justified tliat Instruction, which told theM 
that If they believed from the eriilMn* that 
after defendant's wagon struck pliiiniiir" 
wagon, defendant's employe in clinrge cf '! 
did not use ordinary care to stop oc difi 
defeadant's wagon, and that, as a resvilt «I 
failure on the part of defendant's emi'lo!* 
to use ordinary care to stop or cliect deffUJ- 
ant's wagon after striking plaintiff's waccn, 
plaintiff's wagon ond team were drapftil ut- 
er the collision between the two wagous, iM 
plaintiff was thrown out of tlie wBgun » 
that he strock the ground with great foi« 
aud violence, 'then such faUnre on the pirt 
of defendant's servant to use ordinary oJt 
to check said wagon as aforesaid coiistlwlel 
negligence for which defendant is liable, * 
you further believe from the evldecre IS** 
plalntlfTs Injuries and damages were tlw * 
rect result of said negligence." 

It was in evidence In the case thst 4» 
fendaut's wagon came along and struct pUi* 
tlBTs wagou with such an Impact auil H^ 
that It hurled plalntifTs wagon flguintl I 
lamp post at or near tbe alley, about W t«f 
north o£ the place of the coliislou. That « 
a relevant and an Important factor to ^ 
case in showing the uegllgeat speed at ntid 
deftindanfa employe was driving his team. 

[11] It Is further assigned as error to thl 
third instruction that it submitted the 40* 
tiou as to whether plahi tiff's Injuries, in ^ 
abdomen pariicularly, are permaueut It t 
true that the surgeons who tesLLQed reiu.«» 
to state In so many words that these lai| 
were permanent. It was in evidence, 
ever, that at tlie time of the trial, whici 
curred urarly a yeat' after the accident, I 
more accurate, some 9 months, plaictUt^ 
still suUermg, niA. ouly in bX/s limb 
his abdomen. It is a w^s«^wL r<de * 



Mo.) 



OUDAHT PACEaNtJ C». ▼. ATOHISON, T. A S. F. RT. CO. 



1<» 



nesses, aa experts, are merely adviwry and 
not binding on the Jury, and tbe jury abonld 
accord to them aucb weight as they beUeved 
from all tbe facts and circumstances In evi- 
dence tbey are entitled to receive. See for 
lUustratlon Marliey v. Lonlslana & Mlssonri 
River B. B. C!o., 186 Mo. 848, 84 B. W. 61. 
In tbe Markey Oaae, supra, Hoybecg t. Hen- 
ike, 153 Mo. flS, 56 S. W. 88, is approvingly 
referred to aa deciding that an Inatmction 
was correct, submlttlnc to tbe Jury the auea- 
tioa of the permanenoe of the injury even is 
a case where the expert testimony waa In ref- 
erence to an abstruse adentlflc subject. 

In Frailer v. St loula Smelting le Beflnlng 
Co., 150 Mo. App. 419, loc. dt 4S0, 180 S. W. 
485, 488, a case In which it appeaued that 
there was no evidence given aa to the per- 
manent nature of the In^y, and In which 
an Instruction w«is given submitting to the 
jury tbe question at titielr permanency, our 
conrt said: 

The objectioin to tbe instruction aa to the per^ 
manency of the injury is not well taken, we 
h&Te set out. tbe taetuaony aa to that. Plaistifl 
testified that even down to the day of tbe trial 
ke felt the effecta of this shock, and the allega- 
tions of his petition were broad enough to allow 
tbt jury to take that into eonaidenUCion in d»- 
temuDins the amooat of damage." 

That Is nearly the cdtuatlon here. While 
we have not set out tbe t^tlmony tn full. 
It is sufficient to say of it, that it shows that 
eren down to the day of the trial plaintiff 
was suffering from the effecta of tbe injury. 
It is true that he testified that he had done 
some labor after the accident but nothing 
like the amount of labor or the sustained 
labor that he could do before that, and a 
Tery competent and exi>erlenced surgeon, who 
bad testified to the serious nature of tbe in- 
]Qries to plaintiff, when asked if plaintiff 
bad testified to doing certain work after bis 
icjnries, whether he wpuld change his opin- 
ion as to plaintlfTs ability to do this kind 
of work in tbe condition in which he was, 
particularly with reference to -the hurt in 
Us abdomen, said he would not ; that if plaln- 
titf was doing that he was doing what, In 
hLs condition, he could not safely do. Tbe 
plaintiff was before the Jury ; they saw him ; 
they bad the testimony as to tbe nature and 
extent of his injuries still present at the time 
of the trial, and'' it was for them to determine 
the probable duration of the injury, inde- 
pendent and even in tbe face of testimony to 
tbe contrary by experts, the latter testimony, 
B3 before remarked, being merely advisory 
and not binding upon tbe Jury. 

[12] FlnaUy it is urged that tbe verdict Is 
excessive. We do not think this is tenable. 
With the mture of the injuries received by 
pialntifl before it, the occupation and condi- 
tion and life of the plaintiff biefore tbem. 
tbe diminution of bis earning capacity befoare 
It, we are not prepared to say that tbe r«C' 
diet In this case Is excessive. 



XMseoveilng no reversible error to tbe i»cej- 
udlce of plaintiff in ttie case, the Judgment 
of the circuit court should be and is af- 
firmed. 

NORTONI and ALLEN, 33., concur. 



OUDAHY PACKING CO. T. ATCHISON, T. 
& S. F. RY. 00. (No. 12062.) 

(Kansas City Court of Appeals. Missouri. May 
1, 1916. Rehearing Denied Jane 12, 1916.) 

1. Oabbjebs <$»1770)— Carkiags or Ooods— 
Oabuack Anxrtvumt. 

Tbe oommon-law rule of liability of a car- 
rier for goods sbipned was not cbaBged by the 
Carmack Amendment (Aot Jane 29, 1906, c 
3501, S 7, pars. 11, li, 34 Stat 603 [U. S. 
Comp. St 1013, g 8092]), the purpose of which 
was to make tbe first carrier UaUe as at com- 
mon law. 

[Ed. Note.— For otber oases, see Carriers, 
Cent Dig. JS 770-780; Dec. Dig. «&=>177(3).] 

2. Carbiebs e=Bl06— Oabbieb or Goods— In- 

JTJHY— LlABILITT OF CARRIES. 

At commoa law, the carrier is liable for any 
loss or damage to a shipment not tbe act of 
God or the public enemy, or not caused by a vice 
or infirmity In tbe goods. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. M 471-495; Dec. Dig. <3=»J08.] 

8. Carbiebs <3=3l32— Oarbieb of Goods— Ao 

TIONS rOR Loss— BUBDEN OF PROOF. 

At common law, the burden is on the carrier 
to show that a loss or daaiage -to goods shipped 
comes within one of tbe retmli^ exceptions to 
liability. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. H 678-682, 605; Dec. Dig. <8=>132^ 

4. Carriers «=>131— Cabbub of Goods— Ac- 
tions FOR Loss— PutADiNt}. 
At common law, in action against a carrier 

for.Josa or damages to goods sUpped^ tbe shipper 

need not aHege or prove the carrier's negligence. 
[Ed. Note. — For other cases, see Carriers, 

Cent Dig. a 560-677, 593; Dec. Dig. «=>131.] 

B. Carriers <S=9l34— Carrier of Goods— Ac- 
tions FOB Loss— Presumptions. 
tender common law, a prima facie case 
against a uarrier fer Ioot or damages to goods 
shipped is made by showing a delivery to tbe 
carrier in good condition and properly packed* 
and subsequent delivery after transportation in 
bad condition. 

tBd. Note.— For other caaes, see Oarrien, 
Cent Dig. Si 588-592, 607; Dec. Dig. asE>134.J 

6. Cabbisbs «e3l32— Oabxixb or Goods— Ao* 

TIOSS FOB Loss— BUBDEN OF PBOOF. 

In action against carrier for damage to ship- 
ment tbe plaintiff has the Initial burden of' 
showing that he delivered the goods to the car- 
rier in good condition properly prepared for 
shipment 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. SS 578-582. 605; Dec. Dig. «=>132J 

7. Cabbikbs «=3l84— Cabbibb ov Goods— Ds- 
LiVERT TO Qabrieb— Adkission bt Cabrikb 
—"Apparent Good Order." 

Where meat shipped was delivered to the 
carrier sealed at plaintiff's plant in pkiDtiffa 
own refrigerator car, tbe bill U lading for tbe 
car acknowledging receipt in "apparent good or- 
der," contents and conation pf contents un- 
known, and packer's certificate of United States 
inspection, did not show that the meat was ship- 



«=»For other cams ■•• saoM lopU and KSY-NUMBBBIb aUKay-Nuabarail Dls«ta aat ind«x«i 



Digitizga bf^jOOQ IC 



iGo( 

V 



160 



187 SOUTHWESTERN BJBPOBTiat. 



(Mo. 



ped in good order and properly prepared for 
ahipmeBt 

(Ed. Kote. — For otfier cases, see Carriers, 
Cent Dig. IS 588-592, 607; Dec. Dig. «=»134. 

For other definitions, see Words and Phrases, 
Urst and Second Series, Apparent Good Order.] 

8. Oabbiebs ®=>133— Cabbies of Goods— Ac- 
tion— ADinasiBiLiTY OF EVIDENCB— InUBB'- 
»NT Defects. 
Defendant carrier, to prove the meat spoiled 
from inherent defects or improper preparation, 
may introduce direct evidence or ctrcnmstantial 
evidence tending to eliminate every other cause. 
[Ed. Note.— For other cases, see Carriers. 
Cent. Dig. JS 68a-687, 006; Dec. Dig. «=>133.] 

0. Cabbiebs €=s>136 — Cabbieb or Goods — 

QCESnON FOB JUBT— INBKKKNT DKFKOT. 

Where there is evidence that there was no 
delay or failure to ice that wonld cause the meat 
to decay, the qoestion of the cause of the spoil- 
ing of the meat is for the jury, since they could 
Infer such cause was an inherent defect in or 
impr(^>er preparation of the meat. 

[E!d. Note.— For other cases, see Carriers, 
Cent Dig. §§ 478, 696-698; Dec. Dig. <S=>136.] 

10. Cabbiebs €=>133— Oabbixb of Goods— Ad- 

lassiBXUTT or Evidenok — Inhebknt D»- 

fkcts. 

Evidence by defendant, that the capacity of 

ice bumpers in plaintiff's refrigerator cars is not 

sufficiently large to keep the meat cool enough to 

preserve it from decay, is admissible on the 

question of proper preparation by the plaintiff 

of meat for shipment 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. {{ 683-687, 606; Dec. Dig. «c9l33.] 

Appeal from, Circuit Court, Jadcsom Coun- 
ty; O. A. liucas, Judge. 

"To be offldally published." 

Action by the Cudahy Packing Company 
against the Atcblsou, Topeka & Santa FS 
Railway Company. From a Judgment for 
plaintiff, defendant appeals. Reversed and 
remanded. 

Thomas R. Morrow, George J. Mersereau, 
and Slogan Turgeon, all of Kansas City, for 
appellant C. E. Cooley, P. B. Reeder, and 
New, Miller, Camack & Winger, all of Kan- 
sas City, for respondent 

TRIMBLE, J. The Cudahy Packing Com- 
pany shipped from its packing pliant In Wich- 
ita, Kan., two carloads of fresh meat, one to 
Its branch house in Springfield, 111., and the 
otlier to another of its houses in PIttston, 
Pa. When the cars arrived at their respec- 
tive destinations, the meat was spoiled. The 
packing company brought this suit under the 
.Carmack Amendment to the Hepburn Act 
against the defendant, as the initial carrier, 
to recover the loss. 

The meat was shii^>ed In Cudahy refrig- 
erator line cars owned and furnished by 
plaintiff. They were loaded. Iced, and sealed 
by plaintUC at its packing plant and deliver^ 
ed to .defendant for transportation under 
uniform bills of lading signed by both par- 
ties. These bills contained instructions, in- 
serted by pilalntiff, to re-ice the cars to full 
capacity at certain stations therein named, 
adding 129^ salt, ,and to re-ice oftener if de- 
layed. 



The petition Is in two counts, one for each 
car, and Is based upon the common-law lia- 
bility of the carrier as an insurer, no negli- 
gence being charged ; it being merely alleged 
that the meat, loaded in said refrigerator 
cars fully iced and at the proper tempera- 
ture, was delivered to and receired by de- 
fendant in good condition, but, when deliver- 
ed by the carrier at destlnatlin, was spoiled 
and badly damaged. 

The defendant's answer pleaded, first, a 
general denial; second, a full compliance 
with plalntUTs icing instructions; and, third, 
that the damage, if any, to the meat was 
caused by its condition, or by its natnral 
tendency to spoil and decay. 

The plaintiff Introduced evidence tending 
to show that the cars were delivered to the 
defendant with the. meat in good condition, 
and that wh»i they were received at d^ti- 
natlon the meat was slimy and spoiled. The 
evidence on both sides is to the effect that 
the cars were transported throughout the 
entire Journey under their original seals, 
which shows that the doors were not (V>ened 
In transit nor the interior of the cars dis- 
turbed In any way. In fact, it was not in- 
tended that the defendant should have, nor 
did it have, anything whatever to do with the 
inside of the cars, exo^t to re-ice them. And 
the Instructions to re-ice the cars did not re- 
quire any entrance into or disturbance of 
that part of the car containing the meat, 
since the car was so constructed that the ice 
receptacles could be replenished from the 
outside without that 

The evidence of the parties also agrees 
that the car for Springfield, 111., left Wich- 
ita, Kan., August 19tb, at 5:10 p. m. and ar- 
rived at Springfield August 21, at 8:46 a. m., 
and was set. at the Cudahy plant for unload- 
ing at 11 a. m. of that day. There was no 
delay en route of this car and the proof Is 
that It went forward by the fastest trains. 

PlalntlfTs Instructions In the blU of lading 
required the. car to be re-Iced at Argentine, 
Kan., and Roadhouse, 111., and oftener if 
delayed; but, since there was no delay, the 
car was not iced except at those two places. 
Defendant introduced evidence tending to 
show that the car was iced at these two 
points in strict accordance with plainttfTs 
Instructions. 

The evidence on both sides shows that the 
car destined to PIttston, Pa., left Wichita, 
September 11, at 4:30 p. m. and arrived at 
PIttston and was delivered to the Cudahy 
plant at that place about o'clock In the 
morning of September 17th. Plaintiff's in- 
structions in this bill of lading required the 
car to be re-Iced at Argentine, Kan., Ft Mad- 
ison, Iowa, Blue Island, IQ., Junction Tarda, 
IClcb., and Manchester, Pa., and oftener If 
delayed. Def«idant Introduced evidence 
tanding to show that the car was properly 
iced at all of these iflaces, with the possible 
exception of Blue Island. The proof of the 



«s>rar otbar casM SM •»»• topio and KSy-NUMBEtR In SH'KeT-NumlMrad Dlge«(a and Index 



of the T 



Ma) 



CUDAHT PAOKINO 00. ▼. ATCHISON, T. ft S. F. RT. 00. 



161 



Icing at that place consisted of reports of 
Uie idng foreman attached as exhibits to 
his depo8itio^ which was taken and filed by 
plaintiff but not introduced by any one. De- 
fendant Introduced these exhibits but offer- 
ed DO part of the deposition to identify the 
rqwrts or to show Utat they were correct, 
and the trial court excluded them as not 
b^g identified or supported by the testi- 
mony of any one, 

Hie car arrived in Plttston 24 hours late; 
bat plaintiff's manager testified that this 
short delay would not affect the meat if the 
car was properly Iced and salted according 
to plalntUTs instructions. 

At the close of all the evidence the court, 
npon motion of the plaintiff, struck out all 
of defendant's evidence as to the Idng of 
the ears en route and all evidence as to the 
cars at different points along the Journey 
for the reason that all such facts taken to- 
gether constituted no defense to plaintiff's 
canae of actl(«. This covered all of defend- 
ant's defensive evidence; and, in addition to 
striking It out, the court instructed the 
]ni7, in behalf of plaintiff, to disregard all 
evidence Introduced by defendant as to its 
compliance with the Idng instructions and 
as to the manner in which the cars were 
iced en route. Thereupon the court instruct- 
ed the jury that they must find for the plain- 
tiff on both counts of the petition, but left It 
to the jury to determine the amount of dam- 
ages on eadi count 

{1,2] Defendant makes the point that the 
petition fetils to state a cause of action in 
that it contains no allegation of negligence. 
The contention Is that the liability imposed 
npon the Initial carrier by the Garmack 
Amendment is for damage "caused" by It or 
■ by any connecting carrier, and, hence, In a 
salt under the amendment, the plaintiff must 
allege negllg^ce. But it has been held by 
the Supreme Cburt of the United States that 
the amendment imposed npon the initial car- 
rier the same liability which the common 
law Imposed. In other words, the common- 
law role of liability was not changed by the 
act That ixde was not limited to negligence, 
but went beyanA that and made the carrier 
liable for any loss or damage not the act of 
God or the public enemy. Adams Bzpress 
Company t. Oroninger, 226 U. B. 401, loc. dt 
SOe, 3S Sup. Ct 148, 57 L. Bd. 314, 44 !<. It 
A. (K. 8.) 257 ; Collins v. Denver, eta, R. Co., 
181 Mo. App. 213, Ifl? 8. W. 1178w The pniv 
pose of the act was to make the flrst carrier 
liaUe as at common law. Storm Lake, etc.. 
Factory t. Minneapolis, etc., R. Go. (S>. G.) 209 
Fed. 805, loc. dt 908; Missouri, etc., R. Co. t. 
Harriman, 227 U. 8. Wt, loc dt 873, 38 8up. 
Ct 887, 87 U BO. 690; Kansas Gl^, etc., R. 
Co. T. Carl, 227 U. S. 630, 33 Sup. Ot 391, 67 
I* Bd. 688. 

But In course ot time an exception to the 
carrier's common-law Ualtlllty was added, 
namely, that, if the property transported be- 
came damaged by reason of its mn vice or 



inherent infirmity, and without fault on the 
part of the carrier, the latter was not liable. 
And defendant takes the position that even 
in a suit based upon the carrier's coaunou- 
law UabllltT as an insurer, the real basis of 
the carrier's liabUlty Is negligence; and since 
fresh meat is of a highly perishable- nature 
and the shipment in the present case is one 
where the shipper does his own original ic- 
ing, loading. Inspection, closing, and sealing 
of the car, and the carrier has no opportunity 
to Inspect the meat and nothing to do with 
the Inside of the car, the mere pleading of a 
delivery to the carrier in good condition and 
the delivery by it after transportation in a 
damaged condition should create no presump- 
tion of negllgeDce; because the damage is as 
likely to have been caused by the inherent 
infirmity of the meat as by any negligence of 
the carrier. We do not agree with the state- 
ment that the real foundation of the carrier's 
common-law liability is negUgence because, 
unless the loss or damage Is shown to have 
been occasioned solely by some one of the 
causes which exempts the oarrler from lia- 
bility at common law, the carrier was hdd 
liable regardless of the care it took. But 
even if defendant's contention as to the real 
foundation of liability In the case of perish- 
able shipments like the one at bar be cor- 
rect, still the fact that fresh meat was de- 
livered In good condition and properly iced, 
and was received for shipment by the car- 
rier and was delivered by It in bad condition, 
would raise the presumption that something 
occurred to it during transit to produce that 
condition and, therefore, ttte carrier, under 
the common law, would be liablte as an in- 
surer, unless it sustained the burden of proof 
resting upon it to show that the meat deteri- 
orated through its own infirmity. The rea- 
sons for holding the carrier to its strict com- 
mon-law liability in such a case are as strong 
as in any other case of an unaccompanied 
shipment where the means of knowing what 
has happened to the property in transit are 
all in the possession of the carrier. 

[S-t] Of course, there might be a case 
where the -shipment would be for such a 
great distance covering such a length of time 
as that, from the known tendency of meat 
to spoil in that time, no presumption of faalt 
on the part of the carrier would arise from 
the mere fact that it spoiled in the time nec- 
essarily occupied in the Journey ; but the p»- 
titloD in the case at bar presents no features 
of this character. It cannot be presumed 
that the shipper delivered bad meat., to the 
canler, nor that the meat spoiled of its own 
Inlirmlty, la spite of aH care to prevent It 
in the time tbese shipments occupied. Under 
tlte common law, the burden is <m the car- 
rier to show that the loss or damage came 
within one of the well-recognized exxmptisnB 
from liabllily, and, since the burden is on it 
to show this, the shipper does not have to 
allege and prove neglect on the part of the 



ioogle 



162 



1«7 SOUTHWESTERN lUSPORTBR 



(&Io: 



carrier. A prima fade case Is made by show- 
ing a delivery, In good condition and proper- 
ly packed, to the carrier and the subsequent 
delivery after transportation In bad coaidl- 
tton. Golllas t. Denver, etc.) R. Co., 181 Mo. 
App. 213, 187 S. W. 1178; Stiles v. I/otdsrtne, 
etc., R. Co., 129 Ky. 175, 110 8. W. 820, 18 L. 
R. A. (N. S.) 86, 130 Am. SL Rep. 429 ; Unds- 
ley V. Chicago, etc., R. Co., 86 llinn. 539, 33 
N. W. 7, 1 Am. St Rep. 692; Chicago, etc., 
R. Co. T. Woodward, 164 Ind. 860, 72 N. E. 
558, 78 N. B. 810; St Louis, etc., R. Co. v. 
Knberry, 83 Ark. 87, 102 S. W. 894; Dow v. 
Portland Steam Packet Co., 84 Me. 490, 24 
Atl. 945; Toledo, etc., R. Co. v. HamUton, 76 
IlL 393; Swlney v. American Express Co., 
144 Iowa, 342, 115 N. W. 212, 122 N. W. 957 ; 
RaUway Oa v. Wynn, 88 Tenn. 820, 14 8. W. 
311; 6 Gyc. 876,- 617, 519; Hurst v. St Louis, 
etc., R. Co., 117 Mo. App. 28, loc. dt 86, 94 S. 
W. 794; Read t. St Louis, etc., R. Co., 60 Mo. 
199 ; Touts V. Missouri Pac. Ry. Co., 174 Mo. 
App. 482, 160 8. W. 882; Orler T. St Louis, 
etc, R. Co., 108 Mo. App. 665, 84 8. W. 158 ; 
Dean v. Toledo, etc., R. Co., 148 Mo. App. 428, 
128 S. W. 10. 

But It Is said that plaintiff in its evidence 
in chief attempted to show the cause of the 
damage to the meat by Showing that its Ic- 
ing InstmctiiHis were not properly carried 
out by d^Kidant on the Journey and thereby 
assumed the burden of showing negligence, 
and will, therefore, be held to that theory 
on appeal. We have examined the record 
and find that plaintiff was not basing Its 
cause of action upon a taUure to Ice, or upon 
any negligent conduct In proving that it 
delivered the meat in good condition prop- 
erly padEed and iced, and that it was re- 
ceived In a bad condition, some evidence did 
develop tending to show that the cars were 
not properly iced en route ; but it came out 
as a part of the conditions present in the car 
when delirvered at destination, and this evi- 
dence was offered to show delivery in bad 
condition, and the facts and drcnmstanoes 
which came out along with It which had a 
tendency to show negligence, were wholly In- 
suffldent to show an election or Intention on 
the part of plaintiff to base Its cause of ao- 
tion on negUgaice. The plaintiff did not 
therefore, try its case upon a theory differ- 
ent from that presented by its petition. 

[I] But although the burden is on defend- 
ant to show that the loss arose through one 
of the causes for which a shipper Is exempt 
as an insurer, yet the plaintiff has the prior 
burden of Showing that it delivered the meat 
to the defendant in good condition, properly 
prepared for shipment While the burden is 
on defendant to •stabllsh nonliability as an 
insurer, yet that burden does hot arise until 
after the shipper has, by proof, established 
the facts necessary to create that burden. In 
this case, plaintiff's petition alleged that It 
delivered to the carrier the meat loaded in 
the shippet's own cars, known as Cudahy Re- 



frigerator Cars, and that each car, thus load- 
ed with meat "was properly filled with Ice 
and at the proper temperature, and that said 
meat was in good marketable condition." 
Under these allegations. It wis incumbent 
upon plaintiff to prove these facts, and It in- 
troduced evidence to establish them. The de- 
fendant did not admit these flicts but denied 
them. The general denial in the answer 
raised an issue as to them making It Incum- 
bent on plaintiff to prove them. Hence, un- 
less the bills of lading contained a written 
admission on the part of the defendant that 
the meat was in good condition and properly 
Iced and packed for shipment, the court could 
not give a peremptory instruction to find for 
plaintiff because this would be tantamount 
to telling the Jury it must believe plaintiff's 
evidence as to the good condition and proper 
icing by plaintiff, tt is contended that the 
bill of lading contains such an admission, but 
we do not think so. 

[7] It will be borne in mind that these 
shipments were in plalntltTs own cars; that 
they were loaded, Iced, and sealed by plain- 
tiff at its packing plant and delivered for 
shipment as a sealed car, and that defendant 
had nothing to do with the inside thereof. 
The bill of lading only acknowledged rece^it 
of the property "in apparent good order, con- 
tents and conditions of contents of packages 
unknown." As the evidence shows that the 
cars were loaded, iced, and sealed by plaln> 
tiff before delivery to defendant the bill .of 
lading cannot be said to contain an admis- 
sion that the meat was properly iced nor 
that it was in good condition itself; other- 
wise there is no meaning to be given to the 
word "amtarent" Indeed, when the bills of 
lading were offered in evidence, plaintiff dis- 
dalmed any other purpose Is offering them 
except "for the purpose of showing receipt 
of the goods by the Santa F6 and for no 
other purpose." Neither does the certtflcate 
of the Cudahy Packing Company, placed on 
the bill of lading by it, that the meats had 
been inspected according to Act of Congress 
and "are sound, healthful, wholesome, and 
fit for human food" bind the defendant 
That was simply a certificate signed only by 
the shipper and not by the defendant and 
did not relieve plaintiff of the necessity of 
proving that the meat .was in good condition 
and had been properly Iced for the begin- 
ning of the Journey; -koA plaintiff, at the 
trial, recognised this by offering evidence to 
establish those facts Otherwise. It was er- 
ror^ therefore^ to tell tile Jury that plaintiff's 
evidence was that the meat was la good oon- 
dition, properly packed, iced, and was of the 
right temperature When deUvered to defend- 
ant 

[I] This was a shipment in a sealed (car of 
plaintiff's own make and choosing, and de- 
fendant bad nothing to do with the inside 
thereof, except to follow the ictng lnstru< 
tions. Xhe defendant, aa a common carrle: 



le 



Uo.) 



9CSH T^ BLOCK 



1^ 



did not insure against tb« meat spolUng from 
Us inherent tendency to decay, not infla- 
ecced, affected, or brongbt abont In any way 
by any failure of defendant to perform Its 
public duty. Therefore the defendant should 
have been permitted to lay before ttae jury 
any competent evidence which would tend 
to show that the meat spoiled solely because 
of its own tendency. The defendant is not 
required to prove this by evidence of an ex- 
press and x>osltlve character directly to that 
effect It may be shown by circumstantial 
evidence which tends to eUmlnate every pos- 
sible cause but that. And, in this case, the 
meat's inherent tendency to decay includes 
a failure on the part of plaintifC to properly 
pack, ice, and prepare ti\e meat for ship- 
ment in a pr<^er car wU3i proper Icing In- 
stmctlonB; because, the plaintiff having un- 
dertaken these, if the meat spoils because of 
the Inefficiency of sndi things, the meat has 
spoiled from its inherent tendency so far as 
defendant's liability Is concerned. Where 
there la evidence tending to show that the 
meat qpolled from its own tendency, either 
by direct evidence to that effect, or by dr- 
cmnstantlal evidence which toids to elimi- 
nate every other cause but that, it is tor the 
Jarj to say whether defendant should be 
held liable or not; because if the meat did 
spoil from its own tendency, unaffected by 
any failure of duty on the carrier's part, 
then, under the law, defendant did not in- 
sure against that 

[I] There was no delay as to one of the 
cars, the one going to Springfield; and as to 
the other, although there was a delay of 24 
hours, yet plaintiff's evidence is to the effect 
that this would have no effect on the meat 
if plalntlfTs icing tnatructioos were followed. 
It being conceded that the meat was shipped 
la plaintiff's own cars, that they were in- 
spected, iced, loaded, closed and sealed by it, 
that they moved forward without any delay 
(that is, at least none sufficient to cause 
decay if instructions were obeyed), and that 
the cars went forward to destination with 
seals unbroken, it would seem that the decay 
of the meat arose either because the defend- 
ant faUed to follow icing instructions, or be- 
cause of the meat's inherent tendency to de- 
cay. If the meato'^ecayed from the former 
cause the defendant would be liable; if It de- 
cayed from the latter cause, the defendant 
would not be liable If the defendant in- 
troduced testimony tmdlng to show that it 
followed Idng Instructions strictly and the 
jury Itelieved ttiat U did *o foUow thenii 
then, since under the drcumstanoes of thit 
case every other . teasonahle cause for the 
decay of the meat is excjided except Its nat> 
Ural tendency, the Jury would have the right 
to say that the meat spoiled froqi the latter 
cause and thai the defetudant was not liable. 
And where defendant introduces evidence 
which, either dli«cUy : or by a pweesa of 
elimination, tends to show that the deeaj 



arose through the meat's own inflrmity, or 
to create a reasonable inference to that ef- 
fect, unaffected by any failure of the car- 
rier's public duty, then the question is for 
the Jury to say whether the meat did or did 
not spoil from its own tendency. In short 
whenever the evidence Is in such condition 
that the Jury can reasonably draw the Infer- 
ence either that the meat was not spoiled, or 
that, if spoiled, it was caused by plaintiff's 
Improper packing, idng, or instructions, or 
because of Its inherent tendency, unaffected 
by anything In the carrier's treatment or 
conduct, then the question of the latter's li- 
ability is for the jury. Funsten Fruit Co. 
V, Toledo, etc, R. Co., 163 Mo. App. 426, 
143 S. W. 839; Blake v. St Joseph, etc., R. 
Co., 159 Mo. App. 405, 141 S. W. 24 ; Thomp- 
son V. Qulncy, etc., B. Ck)., 136 Mo. App. 404, 
117 S. W. 1193. 

[10] The evidence, offered on the part of 
the defendant, tending to show that the ca- 
pacity of the ice bunkers in the Gndahy re- 
frigerator cars is not sufSdently large to 
keep the meat at the proper point of refrig- 
eration so as to preserve it from decay, 
Should have been admitted; since it went to 
the question of whether the plaintiff had 
properly done its part in preparing the ship- 
ment, and also whether the meat spoiled 
from this cause and not because of any fault 
on the part of the carrier. 

The Judgment Is reversed and the cause is 
remanded. All concur. 



BUSH V. BLOCK et aL (No. 12026.) 

(Kansas City Court of Appeals. Missouri. 

June 12, 1916.) 

1. JODGMBNT i8=»688 — OoiroursiviiNBSs — 
Matters Involved. 

A judgment in suit on a note was conclusive 
as to all facts involred therein In a suit by the 
assignee of the judgment to foreclose the inter- 
est of the maker of the note in the policy of life 
insurance assigned to secure the note. 

[Ed. Note. — ^For other cases, see Judgment, 
Cent Dig. t 1206; Dec. Dig. <S=>683.] 

2. judgmknt €=>614(2)— jcpshxnt fob debt 
—Remedy by Knfobcement of Lien. 

The obtaining of a general judgment for 
a debt does not bar the remedy for the enforce- 
ment of a lien upon the security for the debt 

[Ed. Note. — For other cases, see Judgment, 
Cent. Dig. i 1127; Dec Dig. <S=>614(2)T 

S. INBOKANCK «=»222 — LinB PoUOT— RlOHT 
or ASSIONBK. 

The assignee of a life insurance policy tak- 
en as security for the insured's note had the 
riRht, upon insured's refusal to pay further pre- 
miums, to convert the policy into a paid-up pol- 
icy, upon notice to the insured. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dig. | 492;' Dec. Dig. ®=)222.] 

4. Insokance «=»222 -r- Assignment oi- Life 
PoucT— Obugation to Pay PBEMfUifs. 
The assignment of a life insurance policy as 
security for a note did not relieve the insured of 
the obligation to pay premiums. 

[Ed. Note. — For other cases, see Insurance, ^-^ 

— ■ - 'Qo. r»-- ru™ dlt-^'>o'x^ . / ^ _ _ 



Ceat Dig. § 492 ; Dec. Dig. «s?22a.] 



«csFar otfeer «^i«« m» aun« topU and KIT-KVMBSB in aU Kay-Mimlrartd Ois«>i* «aa laiWxss 



.^Google 



164. 



187 SOUTHWBSTERl^ REPORTER 



(Mo. 



ff. InMitAnCB «=»222 — NBCE8SABT Pabtt — 
Statute. 
Under Key. St 1909, § 1732, providing that 
any person who has or claims an interest in a 
controversy adverse to the plaintiff, or who is 
a necessary party to a complete determination or 
settlement of the question involved, may be made 
a defendant, in suit by an assignee of judgment 
on a note to foreclose insured's interest in a 
life policy assigned by him as security for the 
note, which policy, upon insured's failure to pay 
premiums, the holder of the note converted into 
a paid-up policy, the insurance company, not 
claiming an interest, was not a necessary party. 

[Ed. Note.— For other cases, see Insurance, 
Cent. Dig. § 492; Dec. Dig. <&=9222.] 

8. liiiaTATioR OF Actions «=»168— Statdte 

OF LnilTATION — LiKN ON LiFE INSURANCE 
POUCT. 

The lien on a life policy assigned to secure 
insured's note is regarded as an incident there- 
to, and, so long as the debt for which the securi- 
ty is given is kept alive, the lien remains alive, 
and suit to foreclose is not barred. 

[Ed. Note.— For other cases, see Limitation of 
Actions, Gent. Dig. S 654; Dec. Dig. <3=»168.] 

7. Altebation of Instbuioints €=»2&— Life 
INSCBANCE — ^Assignment of Pouoy — Sup- 

BTCIENCT OF EVIDENCE. 

In suit to foreclose insured's interest in ft 
life policy assigned to secure his note, evidence 
held sufficient to show that the words "or when 
payment is demanded" were in the assignment 
when it was signed. 

[Ed. Note. — PoV other cases, see Alteration of 
Instruments, Cent. Dig. {§ 259-263; Dec. Dig. 
«=»29.] 

8. Pabtieb ®=352— Amendment— New Pabtt— 
Statute. 

Under Rev. St 1909, U 1848, 1849. 1854, 
1857, permitting amendments before final judg- 
ment by bringing in new parties, etc., in suit to 
foreclose insured's interest in a life policy as- 
signed to secure his note, amendment of the peti- 
tion, after submission of the case, to bring iii as 
a party insured's attorney, to whom insured as- 
signed after submission, was allowable where the 
new facts alleged were not inconsistent with the 
facts on which tbs case was tried, being merely 
those arising since submission and not affecting 
the issues, bnt possibly affecting the validity 
of any judgment that might be rendered for 
plaintiff. 

[Ed. Note. — ^For other cases, see Parties, 
Cent Dig. i 88 ; Dec. Dig. «=>52.} 

9. Pasties «=>59(2)— Substitution of Pab- 
tt — Statute. 

By Rev. St 1909, { 1924, touching substi- 
tution of parties upon transfer of an interest, in 
suit to foreclose insured's interest in a life pol- 
icy assigned as security for a note, insured's at- 
torney, upon assignment by insured to him aft- 
er submission of the case, could be substituted 
as defendant for insured. 

[Ed. Note. — For other cases, see Parties, Gent 
Dig. §g 91, 92; Dec. Dig. «s»60^).] 

10. Pasties e=»63 — Amendment — Substitu- 
tion OF Pabtt. 

As a general rule, the substituted party takes 
up the litigation where the original party left it 
[Ed. Note. — For other cases, see Parties, Cent 
Dig. { 99; Dec Dig. «=»88.] 

11. Appeabance «=>24<5)— Oenebai, Appeab- 

AIIOB— iSUBSTITUTBD PABTT— FaJDCUBB TO IS- 
SUE AND Sebve Summons. 
The fact that no summons was issued and 
served upon a party made a defendant after sab- 



mission of the case upon asrignmeot to him of 
the subject-matter could not oe relied npon by 
him to destroy the judgment rendered, where, 
by filing motion to strike out the amended peti- 
tion, he voluntarily entered his general appear- 
ance to the merits of the case, such an appear- 
ance being in fact general, though the moving 
party says his appearance is special only, the 
motion filed being an absolute submission to the 
jurisdiction of the court 

[Ed. Note.— For other cases, see Appearance, 
Cent Dig. } 126; Dec. Dig. «=»24(5).l 

12. Depositionb «=»90— Use as Bvidencb— 
Pbesenoe in Coubt OF Deponent. 
In suit to foreclose insured's interest in a 
life policy assigned by him as security for his 
note, the exclusion of insured's depoedtion taken 
by plaintiff, a notary public, was proper where 
insured was in court and was himself called to 
the stand and allowed to testify. 

[Ed. Note. — For other cases, see Depositioiis, 
Cent Dig. H 248^66, 258-260 ; Dec. Dig. «=» 
tfU.j 

18. Evidence iS=>211 — Admission bt Oaix- 

iNo Witness — Deposition. 

The taking of defendant's deposition by a 

notary public who was plaintiff in the suit did 

not constitnte defendant plaintiff's witness, so 

aa to make his statements admissions of plaintiff. 

[Ed. Note. — For other cases, see Evidence, 
Cent Dig. {{ 738-744; Dec. Dig. «=>211.] 

14. WiTNKBBES «S»178(1) — GOMPBKBNOT — 
TSANSACnONS WITH Deoedknt— Waiveb. 
In suit to foreclose insured's interest in a 
life policy assigned by him as security, the tak- 
ing of insured's deposition by the assignee of the 
widow of the deceased and original holder of the 
note waived insured's incompetency as a witness, 
on account of the holder's death, to testify con- 
cerning transactions had with tne latter, 

[Ed. Note.— For other cases, see Witnesses, 
Cent Dig. {§ 722-724; Dec. Dig. «=»178(1).] 

Appeal from Cinmlt Court, Jacksoa Coun- 
ty; E. E. Porterfield, Judge. 

"To be officially published." 

Suit by Charles U. Bush against Maurice 
Block and anotbw. From a Judgment for 
plaintiff, defendants appeal. Affirmed. 

F. Titos and S. A. Dew, both of Kansas 
City, for appellants. R. W. Orlmm and Cba& 
M. Bosb, both of Kansas City, for respond- 
ent 

TRIMBLE, J. This suit in eqnlty was 
bronght originally against the defendant 
Block alone, to foreclose bis Interest tn a 
policy of life insurance Cbr |2,000 Issued to 
said Block by the EqultAAle life Assurance 
Society of the United States, dated July 18, 
1801. Tlie foreclosure was sought upon the 
ground that the policy had been assigned as 
security for a debt now held and owned by 
plaintiff, and which defendant Blocik liad 
failed to pay. 

It seems that <» October 30, 1896, BIo<A 
executed to John P. Loomas his promissory 
note for $600 due December 30th, after date, 
bearing 8 per cent interest from date nntU 
paid; that Block delivered to said Loomas, 
as security, the aforesaid policy of Insur- 
ance with the following assignment orjnort- 
gage attached thereto: 



«s>Var athtr cmm s«* smm' topic and KKT-NVMBBR Is «U Kw-Numbwad DISMts and Indsatas 



CooqIc 

Mas O 



Uo.) 



BCSH ▼. BIiOCK 



156 



"Kansas City, Mo., Dec. 22, 189& 
"I bereby •asiKn policy number 540329, which 
is hereto attached, to J. P. Loomas, his heirs 
md nssigns, as his interest may appear. 

"This asBigiiment is made to protect said J. 
P. Loomas against loss on my note for ($500.00) 
five hoodred dollars, which he holds, and also to 
protect him against loss by reason oi his indorse- 
meot on the note of the M. Block Produce Co- 
now hdd by the American Nat Bank for ($900.- 
00) nine hundred dollars. Xhese notes will be 
ndaced from time to time and th^ assignment 
of this policnr is made to protect and jwy these 
notes for whatever amount remains unpaid at 
ray death, or when payment is demanded. 

"[8i«ned] Maurice Block." 

Afterwards, In May, 1901, Loomas died 
leaTing a will In whl<^ Us widow was made 
lestduary legatee. While the said note, pol- 
icy, and assignment were In the bands of 
the execntrlz of the will as a part of the 
assets of said estate, said Block appeared 
before a notary public (plaintlfr herein) on 
the Sth of December, 1902, and acknowledged 
the assignment to be his free act and deed, 
and the ceiUflcate of said aclmowledgment 
was dnly Indorsed npon said assignment 
After Loomas' estate was duly settled In 
the probate court, said 9500 note, with the 
tecorlty therefor, passed to and became the 
IHt>perl7 of «ild widow, Mary I. Loomas, on 
Xorembw 25, 1908. 

It seems that the pronlum on the policy 
dne October 2, 1903, was not paid, and, as 
Block conld not bo Indnced to pay further 
piemlmns, the policy was, after dne notice 
to Blocfc, forwarded to the company to be 
converted Into a pald-np policy. In accord- 
ance with the terms thereof, tar as many 
twentieths of tbe original policy as there 
were cMnplete annual payments made, and 
the Insurance company accordingly convert- 
ed said poUcy Into a paid-up policy for $1,- 
200. This was done April 29, 1904. 

Afterwards, Mrs. Loomas brought suit on 
said note against Block in the drcolt court 
of Jackson county. Mo., In which personal 
•errice .was obtained, and ludgment In her 
faror was rendered March 7, 1907. 

On August 81, 1909, Mrs. Loomas assigned, 
in writing, said Judgment and also all Inter- 
est In the policy (now changed to a paid-up 
poUcy for ^,200) to the plalntiiT, Charles M. 
Bnsh. He instituted tbe present suit to 
foredose on April 26, 1914. The defendant 
Block, through his counsel Franir Titus, filed 
an answer setting up various defenses which 
will be stated and considered later. The 
cause was heard at the September term, Sep- 
tember 29 and 30, 1^14, and was taken under 
advisement At tbe time of tbe Institution 
of the suit on down to and during the hear- 
ing of the case and after the submission to 
tbe court, the defendant Block was the sole 
owner of the equity of redemption in said 
IxAlcy. While said cause was being held by 
the court under advisement and waiting for 
briefs, the defendant Block, on October 7, 
1914, executed a hill of sale attempting to 
transfer and assign said policy to his sold 
attorney Tltua. Thereupon, on October 16| 



1914, at tbe same term, plaintiff filed an 
amended petition which stated tbe same 
cause of action as tbe original petition, but 
which made Titus a defendant also, and al- 
leged that defendant Block was tbe sole own- 
er of the equity of redemption In tbe policy 
down to and after tbe taking of tbe case 
under advisement, and that, while said case 
was 80 under advisement, said Block, for a 
consideration of $1, had assigned said policy 
to said Titus, who received same with full 
knowledge of itlaintifiTs rights and of tbe 
proceedings In the trial of the case, and that 
the purpose of said assignment was to take 
the title to said equity of redemption out of 
defendant Block and beyond the scope of 
any Judgment that might be rendered, mak- 
ing It necessary that said Titus be made a 
party, and praying, In addition to the prayer 
of tbe former petition, that Titus be enjoin- 
ed from transferring the equity o£ redemp- 
tion to other persons, and thereby render it 
impossible to secure an adjudication of plain- 
tiff's rights and cause him Irreparable In- 
jury, since Block was insolvent and could 
not be compelled to respond In damages. The 
court set the hearing on the restraining or- 
der for October 17, 1914, after bond had 
been filed and approved. On that day tbe 
hearing was reset for October 20, 1914. On 
October Id, 1914, defendant Frank Titus ap- 
peared and filed motion to strike out th^ 
amended petition, which was takeii onder ad- 
visement by the court and on January 16, 

1915, was overruled; the defendant Titus 
excepting. The case was then set down for 
further hearing ou March 22, 1915, at which 
time defendant Block appeared by his coun- 
sel Titus, but the latter for himself Individ- 
ually declined to plead to the amended pe- 
tition and was adjudged to be in default At 
the final hearing on this date, defendant 
Block, through bis attorney Titus, disclaim- 
ed any desire to have further time to intro- 
duce evidence. Whereupon tbe plaintiff in- 
troduced evidence showing the transfer to 
Titus after the submission of the case. No 
evidence was offered in behalf of either de- 
fendant upon this branch of the case. The 
court thereui)on rendered Judgment in favor 
of plaintiff, finding that plaintiff had a lien 
or mortgage on tbe policy superior to tbe 
rights of said defendants, and that tbe title 
of Titus was subject to the rights of plain- 
tiff ; that there was due on the Indebtedness 
to plainUff tbe sum of $1,303.43. The court 
then decreed that the equity of redemption 
in the poUcy be foreclosed, and that defend- 
ants and each of them be restrained and en- 
Joined from disposing of the policy, and that 
defendant Block take nothing on account of 
his counterclaim. Both defendants appealed. 

[1, 2] Tbe point that tbe original petlUon 
failed to state facts sufScient to constitute 
a cause of action is without merit A num- 
ber of objections are made to the petition, 
each on 
certain 



OUJKCUUU9 tti^e jjuuue lu uie ycui^uu, 

I the ground that it fails to state a /^^/-k/^rvT^> 
fact, but a reading of the peUtloiy VjVjOy IC 



166 



187 SOUTHWBSTESRN B£POBTEB 



(Mo. 



discloses that tlie claim that such facts are 
omitted Is groundless. Other facts which 
defendants claim were not stated were not 
necessary to be stated In view of the general 
Judgment obtained against Block on said 
1500, which was pleaded in the petition, and 
which Judgment ooncluslvely settled all facts 
involved therein. One of the objections, how- 
ever, deserves special notice. It is contended 
that Mrs. Loomas and plalntifF as her as- 
signee mnst be deemed to have elected, as a 
matter of law, to look to the defendant Block 
In person and not to the security offered by 
the policy because the right to foreclose was 
lost by suing Block personally on the note. 
The rule, however, Is that the obtaining of 
a general Judgment for a debt does not bar 
the remedy for the enforcemmt ot a lien 
upon the security for that debt Funk r. 
Seehom, Adm'r, 99 Ma App. S87, loc. clt 600, 
74 S. W. 445; Maffat v. Greene, 149 Mo. 48, 
50 S. W. 809 ; Board of Trustees v. Pry, 192 
Ma 652, loc. dt 561, 91 S. W. 472; McGanley 
V. Brady, 123 Ma Appw 658, loa dt 663, 100 
S. W. 541; 23 Oyc. 1193. Nor does the 
amended petition state any different cause 
of action, as to the foreclosure sought, from 
the original. A comparison of the two amply 
demonstrates this. 

[8,4] The assignee of the policy had the 
right, upon Block's refusal to pay further 
premiums, to convert it Into a paid-up policy. 
Block, in the policy, contracted to pay the 
premiums. The value and life of the policy 
depended upon their regular payment. If 
premiums stopped, the only right, of value 
under the policy, was to have it converted 
Into as many twentieths of its face value as 
there were premiums paid. The assignment 
of the policy to Loomas as security for the 
note did not relieve Block of the obligation 
to pay premiums. Grant v. Alabama Gold 
Life Ins. Co., 76 Ga. 675 ; In re Davison (D. 
0.) 179 Fed. 750; 25 Cyc. 774, 775; KlUoran 
V. Sweet, 72 Hun, 194, 25 N. T. Supp. 295, 
affirmed 144 N. Y. 703, 89 N. B. 857; 19 Am. 
4 Eng. Ency. of Law (2d Ed.) 88. It was 
still his duty to pay them. From 1902 there 
was difficulty In getting Block to pay them. 
Finally, In October, 1903, he refused to pay 
any longer, and, in 1904, he was notlfled In 
writing that on a certain date Mrs. Loomas 
would apply to the insurance company for 
a paid-up policy. On default in the pay- 
ment of premiums the policy could be con- 
verted into a cash surrender value or into 
paid-up Insurance. Of course, the former 
would be much smaller than the latter. 
With Block refusing to pay premiums, Mrs. 
Loomas was in a position where she must 
either pay the premiums herself or take the 
cash surrender value or a paid-up policy. 
If she paid the premiums, there was no tell- 
ing how long she would be compelled to do 
so, and, If the Insured lived long, the pre- 
italums would equal or exceed the policy, and 
the debt would stlU be unpaid. Mrs. Loomas 
was under no obligatioti to pay them. She 



therefore, upon notice to Block, had it con- 
verted Into a paid-up policy, which she had 
a right to do. In re Davison (D. C.) 179 
Fed. 750; 26 Cyc. 775* 776. As said by 
Jackson, J., in Grant t. Alabama, etc., Ins. 
Co., 76 Qa. 675, loc. dt. 582: 

. "It would be manifestly oBJnst to give a se< 
cnrity, kill it by failare to keep it alive by feed- 
ing It, and then claim a jttdcment • * * for 
his own wrong." 

The reason the policy is now a paid-up 
policy for $1,200, Instead of a going policy for 
$2,000, on which the obligation to pay pre- 
miums would still continue, is because of 
Block's failure to perform his duty in keep- 
ing up his premiums. Hence he cannot take 
advantage of bis own wr(mg nor demand 
damages on a counterclaim for tbe conver- 
sion of the policy into a paid-up policy for 
$1,200. And, as we have seen, Mrs. Loomas 
had the right to have It changed under the 
drcumstances. 

[5] This leads us to another contention of 
defendants closely related to the one Jnst 
considered. That is that the insurance com- 
pany was a necessary party to this proceed- 
ing. Under the statute, any person who has 
or claims an interest In the controversy ad- 
verse to the plaintiff, or who Is a necessary 
party to a complete determination or settle- 
ment of the question involved, may be made 
a defendant Section 1732, B. S. Mo. 1909. 
But the insurance company ndther has nor 
claims an Interest in this controversy ei- 
ther adverse to or in favor of plaintiff, nor 
Is it a necessary party to a settlement ot 
the question In this suit That question is 
whether plaintiff has a lien on the policy for 
the debt, and whether that Hen shall be 
enforced by foredosure. The Insurance com- 
pany was not a party to the assignment nor 
is it Interested In the subject-matter of the 
suit, viz., the policy, or in the ownership 
thereof. Bven if it were or had been made a 
party, it could not be required to change the 
policy from $1,200 back to $2,000, since, by 
virtue of Block's refusal to pay premiums, 
the obligation and liability of the insurance 
company have become fixed. Besides, for a 
better reason, any such claim on the part 
of Block against tbe insurance company, 
even if it had been asserted, would be out- 
side the scope of this suit The Insurance 
company was not a necessary party. Bald- 
win V. Jordan (Tex. Civ. App.) 171 S. W. 
1016, loc. dt 1017. 

[•] Nor was the present action barred by 
the statute of limitation. The lien or mort- 
gage on the policy to secure tbe note is re- 
garded as an incident thereto, and so long as 
the debt for which the security is given, is 
kept alive, the lien remains alive. Johnson 
V. Johnson, 81 Mo. 331, loc dt 338; Berry- 
man V. Becker, 173 Mo. App. S46, loc dt 
856, 158 S. W. 899. 

[7] It Is claimed that the assignment has 
been fraudulently altered, in that the con 
dudlng words "or when payment Is demand- 



Pgle 



Ho.) 



BUSH T. 6L0GK 



IS*} 



ed" were added after Ita execution. But 
there U no erldence Bbowlng tliat time 
words were added after the docninent waa 
signed. Block swore be did not reed the as- 
signment when It was signed. He therefore 
oiiiJd not my whether the words were there 
or not. Every handwriting expert says the 
Tords are In the same handwriting as the 
rcet of tlie paper. There la SufBdent evi- 
dence to gbow that tbese words were In the 
issignment when It was signed. The evl- 
ilence Is tliat Mr. Loomas wrote the assign- 
ment, and consequently he wrote the words 
«ld to bare been added. Before Mr. Loomas' 
lesth. Block wrote him one or two letters 
wbldt, In effect, are admissions that Loomas 
lid not bsTe to wait tintU Block's death to 
:ealize on the note or to foreclose the policy. 
n addition to this, after Mr. Loomas' death, 
ridcta was clearly after the words conld pos- 
ibiy have be«n pot In there, since they 
rere in Loomas' handwriting. Block ac^nowl- 
dged the assignment as it now appears he- 
rn a notary pabllc. The fact that said 
fltiry pabllc now happens to be tbe plaln- 
Iff herein makes no difference. At that time 
e liad no Interest in said assignment. 
(Ml] It Is also urged that the court bad 
» aotbority to allow the amended petition 
) be Sled after the case had been tried and 
■bmitted. As heretofore stated, the ' only 
IdltioD made to tbe original petition by the 
nended one was to moke Titus a party 
Ml set up the transfer to him of the title 
I the equity of redemption since the sub- 
isslon. It was perhaps necessary to the 
ilidlty of any Judgment that might be ren- 
^Ki in plalntUf's faror that Titus be made 
party. Section 2836, R. S. Mo. 1909; Mc- 
raley t. Brady, 123 Mo. App. «58, 100 S. W. 
1 Bnt Titus did not become a necessary 
rty until after the submission of the case 
d did so with tbe most full and complete 
tlce of plaintiff's rights and claims. The 
leodment was allowable. Pratt t. Walther, 
Mo. App. 48L And it could be made even 
ter submission of the case. Sections 1848, 
»9, B. S. Mo. 1909; Reyburn v. Mitchell, 
» Mo. 365, 379, 16 S. W. 592, 27 Am. St. 
p. 350; O'Fallon v. Clopton, 80 Mo. 284, 
S. W. 302; Coats t. Elliott, 23 Tex. 606. 
reality, the amendment was a substitution 
Titus for Block, and the former could be 
»tituted for tbe latter. Section 1924, B. 
Mo. 1909. As a general rule, the subatltut- 
party takes up tbe litigation at the point 
ere tlie original party left it. 20 Enc^. of 
& Pr. 1061; Wellman t. Dismukes, 42 Mo. 
i ; 2 Am. & £ng. Ency. of Law, 1079. Tbe 
ended petition was confined to the same 
)ject-matter as before. The; new facts al- 
ed were not inconsistent with tbe facts on 
ich the case was tried. Indeed, the same 
to were alleged, and the new facts were 
rely tbose arising since the submission of 



the case and In no way affecting the Issues 
involved, but did perhaps affect the validity 
of any Judgment that might be rendered for 
plaintiff. Hence the amendment was proper. 
Sections 1848, 1854, and 1857, R. S. Mo. 1909; 
Cohn V. Senders, 175 Ma 455, 467, 75 S. W. 
413; Ward v. Davidson, 89 Mo. 445, 455, 1 
S. W, 846. 

[11] The fhct that no sommons was issued 
and served upon Titus cannot now be relied 
upon by him to destroy tbe Judgment ren- 
dered; for, by filing a motion to strike out 
the amended petition, he voluntarily entered 
his general appearance. This motion did not 
go to the Jurisdiction of the court over him 
nor to the question of service or lack of 
service. It went to the merits of the case. 
Such appearance Is, in effect, general, even 
if tbe moving party soys his appearance is 
special only. Edgell v. Felder, 84 Fed. 69, 
28 C. C. A. 382; Wlcecarver v. Mercantile, 
etc., Ins. Oa, 137 Mo. Ak>. 247, 255, 117 S. W. 
696. Tbe motion filed was an absolute sub- 
mission to the Jurisdiction of the court, and 
that made the appearance general. 3 Cyc. 
502, 503, 611; Thomasson v. Mercantile 
Town Mut Ins. Co., 114 Mo. App. 109, 115, 
89 S. W. 564, 1135. By challenging the suf- 
ficiency of the amended petition the defend- 
ant Titus entered his general appearance 
whether he Intended to do so or not. King* 
V. Hyatt, 61 Kan. 518, 34 Pac. 461; 3 Cyc. 
504, 608, 509; Albert v. Clarendon Land, 
etc., Co., 53 N. J. Eq. 623, 23 Atl. 8 ; Welch 
V. Ayres, 43 Neb. 328, 61 N. W. 633 ; Pry v. 
Hannibal, eta, R. Co., 73 Mo. 123, 127; State 
ex rel. v. Grimm, 239 Mo. 135, loc clt 174, 
143 S. W. 483. See, also, Tower v. Moore, 
52 Mo. 118, loc. clt. 120. 

[12-14] The exclusion of the defendant 
Block's deposition taken by plaintiff was not 
error. Defendant offered the deposition; 
but, upon the attention of the court being 
called to the presence of Block, the deposition 
was excluded and Block himself called to 
the stand and allowed to testify. The taking 
of Block's deposition did not constitute him 
plaintiff's witness so as to make Ms state- 
ments admissions of plaintiff. The taking of 
said deposition waived Block's incompeten- 
cy, on account of Loomas' death, to testify 
concerning transactions bad with the latter. 
But the matters Block desired to testify 
about, which were excluded, were matters 
which the Judgment on the notes rendered 
In Mrs. Loomas' favor had made res (idjudi- 
cata. Tbese were that he had paid the note 
to Loomas; that the note .should have been 
made to the American National Bank; that 
Loomas suffered no loss on accoimt of the 
note, etc. 

Other objections are made to the decree, 
but we think they are covered by the fore- 
going. 

The Judgment is affirmed. All concur. 



i;!-^b7 Google 



168 



187 S0UTHWS6TB&N KBPORTBB 



(Mo. 



OITIZBNS' BANK OF SBNATH t. DOUG- 
IiASSetaL (No. 1648.) 

(Springfield Court o£ Appeals. BiissoatL 
June 17, 1916.) 

1. KVIDENCE <g=>183(14)— DoCUMltNTART EVI- 
DENCE— COPY— LOSS OF Obiginal. 

In a bank's action on a note, where the tea- 
timony was sufficient to justify the conclusion 
that its cashier, when agreeing with the maker 
and certain third persons that such third per- 
sons would pay the note, was acting for the 
bank, and a letter of such third person to the 
bank, stating that the cashier and another par- 
ty had assumed the payment of the not^ and 
that he also agreed to pay It if they did not, 
was found among the cashier's personal letters, 
the lo